Personal Injury and Death Flashcards
What are the elements of liability for negligence?
(a) There is a duty of care owed by the defender to the pursuer.
(b) There has been a breach in that duty by the defender
(c) The defenders’ breach has caused the pursuers loss.
What did the case of English v Wilsons and Clyde Coal Co Ltd 1937 establish?
That employers had a duty of care to their employees and could not escape liability.
Is a duty owed where parties are linked by contract?
Yes.
What does the Bourhill v Young case establish?
That road users do owe a duty to other road users and pedestrians in the vicinity.
Was Bourhill successful in her claim?
No, she was determined to be outwith the ‘geographical proximity’ despite suffering nervous shock resulting in miscarriage. Not reasonably foreseeable
What ‘test’ was established in the case of Donoghue v Stevenson?
This case established the ‘neighbourhood principle’. Lord Atkin stated that reasonable care must be taken to avoids acts or omissions which are likely to cause injury to your neighbour.
Who in law is seen as your ‘neighbour’?
Anyone who is so closely and directly affected by my act that i ought to reasonably have them in my contemplation. As per Lord Atkin in DvS.
Who are duties of care seen to be owed to?
Persons who are in my proximity, who i ought to have in my contemplation.
When are duties of care likely to occur?
Where a person takes a foreseeable risk that are likely to materialise if sufficient care is not taken, as per the case of Muir v Glasgow Corporation 1943.
What are the facts of Muir v Glasgow Corporation 1943?
This case established a duty of care was not owed to children who were scalded by boiling water despite it only occurring due an employee allowing them in to shelter from rain.
The urn was dropped as one of the people carrying it dropped the handle. Lord Macmillan took the view that it was not reasonably foreseeable and was an improbable event.
What did the case of Hughes v Lord Advocate 1963 establish?
That the precise way in which an accident occurs does not have to be reasonably foreseeable if there was a duty to guard.
E.g. paraffin lamp hole in ground.
What is the ‘thin skull rule’?
This simple answer is that you take your victim as you find them. .
What are the facts of McKillen v Barclay-Curle 1967
In this case the defender was liable for not only the pursuers fractured rib, but also the reactivation of their tuberculosis even though it was not reasonably foreseeable. As established by the ‘thin skull rule’.
What are the facts of Paris v Stepney BC [1951]?
Standard of care case. Man was working in job which at time had no requirement for safety goggles. He had lost an eye during the war however and when an accident occurred at his place of work resulting in his complete loss of sight, the courts held that these special attributes constituted a breach of duty from the employer.
How if factual causation determined?
By using what is known as the ‘but for’ test. ‘But for’ the breach injury would not have been caused.
How is legal causation determined?
The immediate, dominant, or effective cause.
Define “Causa sine qua non’
Necessary or inevitable cause
What is a ‘Novus Actus Interveniens’?
A break in the chain of causation due to a new act occurring.
What are the facts of Barnett v Chelsea and Kensington Hospital?
A patient was presented to A&E where a doctor refused to see him. Patient returned home and died. He died of arsenic poisoning. Therefore although doctor was negligent there was no break in the chain as the patient would have died anyway.
Why did the court rule that there was no break in the chain in the case of Scott v Shephard?
Due to the fact that the throwing of a lit firework into a crowd is a predictable consequence even though it was thrown on by others.
The case of McKew v Hollan Hannen and Cubitts 1970 does contain a ‘Novus Actus Interveniens’. What happened?
Mckew suffered knee injury at work. Before his knee had fully recovered he went to visit someone at a tenement flat and felt his knee gave way. He then proceeded to jump down steps. Raised action against employers and lost as although they were originally liable the act of jumping and causing further injury broke the chain.
Under remoteness of damage, what is the levels of liability faced by a defender?
A defender will only be held liable for foreseeable consequences of their actions. The law will draw a line before losses become too speculative and this varies from case to case.
Loss of chance is rarely successful but the case of Kyle v P&J Stormonth-Darling 1993 was an exception. Why was this?
This was due to the fact a firm of lawyers had failed to lodge appeal papers in time and thus the result was Kyle lost his case. He was awarded damage as he had lost the right to appeal despite the fact he may not have won. The court established the solicitors were negligent and granted damages.
What piece of legislation regulates the defence of contributory negligence?
The Law Reform (Contributory Negligence) Act 1945 s.1
