Personal injury Flashcards
Watson v British boxing board of control 2000
Micheal Watson was injured during a boxing match and suffered severe brain injuries. He claimed from the board, arguing that if proper medical facilities had been provided at ringside, his injuries would have been less severe. The court of appeal decided using the
Caparo test, the board owed him a duty of care as it was the responsible body for licensing professional boxing.
Robinson v chief constable of West Yorkshire 2018
Two policemen were having a violent struggle with a suspect they were trying to arrest. This struggle resulted in them knocking over the claimant, who was an old lady. She claimed damages from the police for her foreseeable personal injury caused by their negligence. The court rejected the previous judgement that the police had complete immunity. Meaning no legal liability for their actions no matter what.
Elements of negligence
1 There was a duty of care owed
Proximity of relationship
Reasonably foreseeable harm
Fair just reasonable
2 the duty has been breached
Defendant falls below standard of care
3 the breach of duty caused the damage
Damage was reasonably foreseeable
Duty care case
Established in donoghue v Stevenson the neighbour principle
Legal principle a duty care is owed to your neighbour this is the person who may potentially be injured
By your act or omission.
Caparo v Dickman 1990
The claimant company wanted to overtake another company - fidelity limited They looked at the statutory accounts prepared for fidelity by the defendant, which showed a profit. Based on these books they decided to take over fidelity limited. After completing the purchase they looked at the detailed books which showed a loss. They sued the defendant for their loss. The House of Lords set the three stage test for owing a duty of care. They decided the defendant did not owe the claimants a duty of care as the accounts were prepared for fidelity and for statutory reasons.
Caparo test
1 was it the damage or harm reasonably foreseeable
2 is there a sufficiently close relationship between the claimant and the defendant
3 is it fair just and reasonable to impost a duty
All three parts need to be satisfied to show a duty of care
Kent v Griffith 2000
An ambulance was called to take the claimant, who was suffering from an asthma attack to the hospital. Despite repeated assurance by the control, centre and for no obvious reason, the ambulance failed to arrive within a reasonable time. As a result the claimant suffered a respiratory arrest.
The court decided it was reasonably foreseeable that the claimant would suffer further illness if the ambulance did not arrive promptly.
Legal principle no public health service can operate without effective ambulance provision
Bourhill v young 1943
A pregnant women heard the sound of an accident as she got off a tram. The accident was caused by a motor cyclist who died in the accident. After a short while she approached the scene of the accident and saw blood on the road. She suffered such shock from what she saw that she later gave birth to a stillborn baby. She sued the relatives of the dead motorcyclist. Under the neighbour test at the time she had to prove that she was proximate or close to the motorcyclist to be owed a duty of care. The House of Lords decided that the motorcyclist could not anticipate that, if he was involved in an accident it would cause mental injury to the bystander. He was not proximate to mrs bourhill and she was not owed a duty of care.
Legal principle it was considered that the relationship between the two was not close enough for there to be a duty of care this is to reduce the floodgates of other claims
Mc Loughlin v o brien 1982
In this case, while she was at home, the claimants husbands and children were involved in a serious road accident. The accident was caused by the negligence of the defendant lorry driver. One of the children was killed at the scene and the other family members were taken to hospital. The claimant was told of the accident and went to the hospital. She saw her family before they had been treated. As a result she suffered severe shock, organic depression and a personality change. She claimed against the defendant for the psychiatric injury she suffered. The House of Lords decided that the lorry driver owed her a duty of care and extended the class of persons who would be considered proximite to the event to those who came within the immeadiate aftermath of the event in this case two hours after the accident.
Legal principle the defendant owed a duty of care to the family members this ensures a limited number of claims.
Hill v chief constable of West Yorkshire 1990
In this case a serial killer, the Yorkshire ripper, had been attacking and murdering women in Yorkshire and across the north of England. The claimants daughter was the killers last victim before he was caught. By the time of her death the police already had enough information to arrrest the killer but had failed to do so. The mother claimed the police owed a duty of care to her daughter. It was decided by the House of Lords that the relationship between the victim and the police was not sufficiently close for the police to be under duty of care and that it was not fair just or reasonable for the police to owe a duty of care to the general public.
The police knew that the killer might strike again but they had no way of knowing who the victim might be.
Bolam v FRiern Barnet hospital management committee 1957
In this case the claimant was suffering from a mental illness and the treatment at the time was to be given a type of electric shock ECT. He signed a consent form but was not told the risk of broken bones while receiving the shocks and was not given relaxant drugs. He suffered a broken pelvis while receiving the treatment.
There were two opinions within medical profession when using ECT. One opinion favoured the use of relaxant drugs in every case. The other was that drugs should only be used if there was a reason to do so, which was not present in bolams case. The court decided that the hospital had followed on of these courses of action it had not breached its duty of care.
Legal principle sets the Bolam test
Bolams test
Does the defendants conduct fall below the standard of ordinary competent member of the profession ?
Is there substantial body of opinion within the profession that would support the course of action taken by the defendant ?
Nettleship v Weston 1971
Mrs Weston arranged with mr nettleship for him to give her driving lessons. She was on her third lesson and failed to straighten up after turning a corner. She hit a lamppost which fell on the car, injuring mr nettleship. The court decided that mrs Weston should be judged at the standard of the competent driver not at the standard of the inexperienced learner driver and she had breached her duty of care to mr nettleship.
Legal principle learners are expected to show the same standard as a competent driver.
Mullin v Richard’s 1998
Two girls aged 15 were play fighting with plastic rulers in class at school. One of the rulers snapped and fragments entered teresa Mullins eye resulting in her losing all useful sight in that eye. The court decided that the other girl Heidi Richard’s had to meet the standard of a 15 year old girl and not that of a reasonable adult. As she had reached the required standard she had not breached her duty of care.
Legal principle children are added against the standard of a reasonable person of the same age.
Risk factors
Has the claimant any special characteristics that should be taken account of ?
What is the size of the risk?
Have all appropriate precautions taken place ?
Were the risks known about at the time of the accident ?
Is there a public benefit to taking the risk?
Paris v Stepney borough council 1951
Mr Paris was known to his employer to be blind in one eye . He was given work to do which involved a small risk of injury to the eyes. He was not given any protective goggles. While doing this work his good eye was damaged by a small piece of metal and he became totally blind . His employers were held to have broken their duty of care to him.
Legal principle take in special characteristics of the individual
Bolton v stone 1951
A cricket ball hit a lady passer by in the street outside a cricket ground. The evidence was that there was a 17 foot high fence around the ground and the wicket was a long way from this fence. There was also evidence that cricket balls had only been hit out of the ground six times in the 30 years before the incident.
Because of the number of times balls had been hit out of the ground, it was found that the cricket club had done everything it needed to do in view of the low risk and it had not breached its duty of care.
Legal principle when there was a higher risk of injury the more precautions should be taken.
Haley v London electricity board 1965
The electricity board dug a trench for its cabled and following its standard practice, it only put out warning signs , it did not put out any barriers around the trench . The claimant was blind and was injured when he fell into the trench. As it was known that particular road was used by a number of blind people greater precautions should have been taken and the defendant had breached its duty of care .
Legal principle the higher the risk the higher the standards of care
Latimer v aec ltd 1953
The claimant worked in the defendants factory and slipped up on the factory floor. The factory had been flooded due to adverse weather conditions. The defendants had put up warning signs mopped up and placed sawdust in the most used places to make it as safe as possible. The trial judge held that there had been a breach of duty as the defendants should have closed the factory if it was unsafe. However no argument advanced on this.
There was no breach of duty. There was no duty to close the factory . The defendant only had to take reasonvale precautions to minimise the risk which they had done . There was no need to got to great expense to eliminate any possible risk and thus no obligation to close the factory .
Roe v minister of health 1954
A factory became flooded and, as the floor was very slippery with a mixture of water and oil, the workers were evacuated. Sawdust was spread over the floor to minimise the risk of slipping and the workers were required to go back in. Despite the spreading of sawdust one worker slipped and was injured. The court held ,that there was no breach of the duty of care.
It was found that the only way to completely prevent injury would have been to close the factory for a period of time. It was unreasonable to expect the owners to do this. They had taken sufficient steps at the time to prevent injury.
Legal principle if the risk is unknown there can be no breach
Public benefit
If there is an emergency then greater risks can be taken at a lower standard of care
Watt v Hertfordshire county council 1954
The claimant was a fireman. There had been a road accident a short distance from the fire station and the fire service was called to realease a trapped women from underneath a lorry. A jack was needed to release the injured women but the normal vehicle for carrying the jack was not available. A flatbed truck was found but there was no means of securing the jack to the lorry. The claimant was inured when the jack slipped and fell on him on the way to the accident. The court decided that the fire service had not breached its duty of care to the claimant because of the emergency situation and the utility of a saving a life outweighed the need to take precautions.
Day v high performance sports 2003
The claimant, an experienced climber , fell from an indoor climbing. Walk and suffered serious injuries. She had to be rescued from the walk by the duty manager at a height of 9meters 30 feet when she became frozen in her position. The way the manager rescued her was inappropriate, causing her fall the. The court decided that the manger, and the centre had not breached their duty of care in view of the emergency situation.
Damage
The claimant must also prove that the breach cause any of the damage,
Damage can be personal injury or financial losses
Consider two points:
Caustation
Remoteness of damage
Which causation
The but for test but for the defendant actions or omissions would have the injury or damage have occurred?
Barnett v Chelsea and Kensington hospital management committee 1969
Three night watchmen went to a hospital an and e department complaining of sickness after drinking tea made by a fourth man. A nurse telephoned the duty doctor, who did not come to examine the men but instead recommended that they go home and see their own doctors . One of the men went home and died a few hours later from poisoning by arsenic .
His widow sued the hospital, claiming that the doctor was negligent in not examining her husband and had caused his death. She was able to prove that the doctor owed a duty of care to her husband and by not examining him , the doctor had broken that duty of care. However, the evidence showed that by the time her husband and called the hospital it was already too late to save his life. The arsenic was already in his system in such a quantity that he would have died whatever was done. This meant that his death was not caused by the doctors breach of duty of care and so the claimed failed.
Intervening act
Intervening acts can break the chain of causation in the same way as criminal law
Remoteness of damage
We must also prove that the damage is not too remote from the negligence of the defendant.
Type of injury / damage foreseeable
The defendant will be liable if the type of injury was foreseeable even though the precise way it happened was not
The wagon mound 1961
Fuel oil had been negligently spilled from the defendants ship on to 2ater in Sydney harbour. It spread towards the claimants wharf where welding repairs were being carried out to another ship. Two days later the oil caught fire because of sparks from the welding. The fire spread towards the claimants wharf and burnt it down. It was decided that, although damage was done to the wharf by oil being spilled was reasonably foreseeable ( predictable) , fire damage was not reasonably foreseeable. This type of damage was too remote from the original negligent act of spilling the oil.
Legal principle : this type of damage must be reasonably foreseeable.
Hughes v Lord Advocate 1968
Post office workmen left a manhole unattended, covered only with a tent and with paraffin lamps by the hole. The claimant an eight year old boy , and a friend climbed into the hole. This caused an explosion which badly burnt the claimant. The defendants denied liability claiming the injured were too remote, but the court decided that the boy was able to claim for his injuries as it was foreseeable that a child might explore the site, break a lamp and be burnt. The type of injury he suffered was foreseeable, even though the explosion itself was not foreseeable.
Bradford v Robison rentals 1967
The claimant was required by his employer to take .an olds work van from Exeter to Bedford, collect a new van and drive it back to Exeter. He had to do this in extremely cold winter and neither van had a heater. As the windscreens kept freezing over, he had to drive with the windows open.
The claimant suffered frostbite and was unable to work. The court decides that the employers were liable for his injuries, even though the injury he suffered was very unusual. some injury from cold was reasonably foreseeable.
Doughty v Turner asbestos 1964
the claimant was injured wen an asbestos lid was knocked into a vat of molten metal. a short time later a chemical reaction caused an explosion of the metal which burnt the claimant. scientific knowledge at the time could not have predicted the explosion and so the burn injuries were not reasonably foreseeable/ predictable. It could be foreseen that knocking something into the molten metal might cause a splash but the claimants injury was caused by something different.
what’s the case for egg shell rule known as thin skull rule in criminal?
Smith v Leech brain co ltd
because of the defendants negligence, a man was burnt on the lip by molten metal in a factory. The man had an existing pre-cancerous condition. The burn eventually brought about the onset of full cancer and the man died.
His widow claimed against the defendants. The court decided that as a burn was reasonably foreseeable, and because of the eggshell rule the defendant was liable for the mans death.
as take your victim as you find them
Res ipsa loquitur- ‘the thing speaks for itself’
- the burden of proving the negligence is on the claimant- on the balance of probability.
- in situations when it is not clear how the duty has been breached but it is clear a duty has been breached, we can use the res ipsa loquitur rule. this is when there is a clear breach of duty.
the claimant has to show:
- the defendant was in control of the situation which caused the injury
- the accident would not have happened unless someone was negligent
- there is no other explanation for the injury
Scott v London and St Katherines docks 1865
The claimant was hit and injured by six heavy bags of sugar which has fallen from the defendants warehouse .
The claimant did not know, and could not prove what had happened to make the bags fall. He could only show what he was injured by the falling bags.
the elements of res ipsa Loquiture were present;
the sacks fell from the warehouse which was under the defendants control
- heavy sacks do not fall unless someone was negligent
there was no other explanation for the sacks to fall
the court decided that the defendants were liable as they were unable to prove that they had not been negligent.
contributory negligence
defence to a negligence claim
- this is the claim that the claimant has partially cause or contributed to their own injury.
law reform act 1945 any damages awarded to the claimant can be reduced according to the extent or level to which the claimant contributed to their own harm.
the amount of blame will be decided by the judge - the amount of damages will be set as if there is no contributory negligence, then the judges will decide what percentage the amount will be reduced by
this is a partial defence
Sayers v Harlow urban district council 1958
A women became trapped in a public toilet when the door lock became jammed. After unsuccessfully calling for help, she tried to escape the cubicle by climbing through the gap between the door and the ceiling. she stood with one foot on the toilet seat and the other on the toilet roll holder. The holder gave way and she was injured. The court decided that the local council was liable for its negligent maintenance but the damages were reduced by 25% because of the way she tried to escape.
legal principle: damages can be reduced is cases of contributory negligence
Jayes v Imi Kynoch Ltd 1985
The claimant lost a finger at work while cleaning a machine with the guard off. The employers were liable for breach of health and safety rules for their failure to ensure that the guard was in place. However the claimant was found to be 100% contributorily negligent as he admitted fault in taking the guard off.
O’connel v jackson 1972
Damages were reduced by 15% when the rider of a moped was injured and suffered greater injuries because he was not wearing a helmet.
Froom and Butcher 1976
The driver of a car suffered greater injuries than would have been the case if wearing a seatbelt. His damages were reduced by 20%.
Stinton v stinton 1993
The damages were reduced by one third for accepting a lift from a drunk driver,
the claimant knew that the driver was over the limit. if the passenger does not know this , or it would have been obvious to a reasonable person, the court may decide that an injured claimant was not contributory negligence.
Badger v Ministry of defence 2005
The claimant died of lung cancer aged 63. The defendant admitted breach of statutory duty by exposing the claimant to asbestos dust, but argued that damages should be reduced because if the claimant had not smoked cigarette he would also been unlikely to die of lung cancer at such a young age. Because the claimant was aware of the risk from cigarettes from 1971 the court reduced damages by 20%.
consent - volunti non fit injuria
full defence
has to show :
- when claimant accepts voluntary assumptions of the risk of harm
to succeed the defendant has to show
1 knowledge of the precise risk involved
2 exercise of free choice by claimant
3 voluntary acceptance of risk
the exception to this is the road traffic act 1988
Stermer v Lawson 1977
consent was argued when the claimant had borrowed the defendants motorbike. The defence failed because the claimant had not been shown properly how to use the motorbike and therefore did not appreciate the risks.
legal principle: the claimant must have full understanding of the risks not just be aware of them.
smith v Baker 1891
A worker was injured when a crane moved rocks over his head and some fell on him. The defence of consent was failed. The workman had already done all that he could in complaining about the risks involved in the work taking place above his head. He had no choice but to continue work and did not give consent to the danger.
legal principle the defence will not succeed if the claimant had no choice but to accept the risks.
Haynes v Harwood 1935
when the defendant failed to adequately tether his horse, the policeman who was injured tried to restrain the was not acting voluntarily. He was acting under his duty to protect the public. The defence of volenti could not be used against him.
legal principle the behaviour accepting the risk must be voluntary.
ogwo V Taylor 1987
The defendant had set fire to his house when attempting to burn of paint. The claimant was a fireman who attended the blaze. He and a collegue had to access the roof space to deal with the fire, but despite wearing breathing apparatus and protective clothing, he suffered burns from the intense heat. The defendants arguement that the claimant consented to the injuries was dismissed.
In the house of lords, Lord bridge pointed out:
“ the duty of the professional fireman is the use their best endeavours to extinguish fires and it is obvious that, even making the full use of all their skills, training and specialist equipment, they will sometimes be exposed to the unavoidable risks of injury, whether the fire is described as “ordinary” or exceptional. if they are not to be met the doctrine of volenti which would be utterly repugnant to our contemporary notion of justice , i can see no reason whatever why they should be held at a disadvantage as compared to the layman entitles to invoke the principle of the so called rescue cases.
legal principle the defence consent not available in rescue cases.
sidway v Governors of the Bethlem royal and maudsley hospitals 1985
the claimant suffered pain in the neck, shoulder and arms. Her surgeon obtained her consent for an operation but failed to explain that in less than 1% of these operation, paraplegia could be caused. unfortunately, she developed paraplegia as a result of the operation and she argued she did not consent to this. The house of lords decided that consent in medical cases does not require a detailed explanation of all remote side effects.as a result there was no liability when the doctor had warned of the likelihood of the risk but not all the possible consequences .
legal principle consent in medical cases does not require a detailed explanation of all possible side effects.
ICI Ltd v Shatwell 1965
The claimant and his brother were quarry workers. The claimant, following his brothers instructions, ignored his employers instructions on the handling of detonators, and was injured when one exploded. He claimed in negligence and breach of statutory duty against his employer. the court decided that, by ignoring his employers instructions and the statutory rules and by following his brothers unauthorised comments he had assumed the risk of injury and defence of volenti succeeded.
legal principle if an employee act against the instructions of the employer then the defence of volenti is likely to succeed.
Wooldridge v Summer 1963
The claimant attended a horse show as a professional photographer. A rider who was riding too fast lost control of the horse, which then injured the claimant. The court of appeal confirmed the that rider owed spectators including the claimant a duty of care. However, it was considered that the rider had been guilty of an error of judgement in his riding of the horse but had not been negligent. there was no breach of duty so volenti was not an issue.
legal principle a tort must have been committed before the defence can be considered.
subjective test
the test for volenti is subjective
it is not enough to argue that the claimant should have been aware of the risk you need to show the claimant was aware of the risk.
the defendant can argue both defences volenti and contributory negligence
if volenti fail they may still claim contributory negligence
