sem 2 - lesson 4 Flashcards
once duty of care estbalished we must consider whether there has been a
BREACH of that duty
main test for breach of duty of care
reasonable test - behave as reasonable person would
what does hall v brooklands auto racing lcub 1933 tell us
reasonable man is
- the ordinary man
- the avergae man or
- the man on the clapham omnibus
+
reaosnable man in thatsituation
key thing hall v brooklands shows us about a particualr kind of perosn
- who a reasobale person is
- how they would behave
what happens in Bagle v Maccies 2022
coffe sold in hot cups casuing injuries
court says mcdonalds ddnt breach duty of care
why did v=court say macdonalds not gonna be held for duty of care in bagle v mcdonalds
manufacturers not gonna be held repsonisble for risk that consumer sshoudl obviously be aware of
what was a rlevant fact/thing that the boggle v maccies case establisejd
if coffee was sold at low temp where no one would be injured no one would buy the coffee
so estblished if gonna sell the coffee got to be hot enough
court says risk so obvious we’re not gonna hold anyone accountable
if a reaosnlabe perosn would not forsee injury or harm arising out of injury then what would happen to teh defendant
they wouldn’t be held responsible
what should we always think in situationis wewe tryan see if there has ben a breahc of duty
what would be reasonable in this situation
what does walker v northimberland city council 1995 show
can be held responsible for psychiatric harm too
+
if you’ve been notified for particular kinds of risks reasonable for you to take precautions
what happned in walker v nirthumberland council
walker - local social worrker - overworked sufffere nervous breakdown as result of extremme stress at work and burnour
his employer was notified and he came back
walker got enittled to more support than before - but it wasnt forthcoming
when he went ack to work had a second breakdown
council held repsonisble ecause they were informed about the risk , they knew about it and it was reaosnablr to take extra precautions
what may have raised the bar and standard of reasonableness in the walker v northumberalnd council
if htey had specific extra info
4 what are factors to be weighee in establishing a breach
Magnitute of harm & practicality of precautions
Special charactersitics of the claimant and of the defendant
inexperience
the social utility fo the defendants action
what is the case for magnitude of harm and practicality of precautions
Bolton v Stone
what id magnitude of harm and practicality of precautions
what does it mean to breach standard of care acoridn got reasonable perosn and how big is risk
how big is the risk and what is the threat and practical precautions - where is hte balance of reasonable ness
what happened in bolton v stone
cricket ball hit someone causing injury (think cricket thinkboltt)
question - is cricket team reesponsible for damge/have they breached duty of care to people who live neaby
how many things do court consider in teh bolton v stone case
2
what 2 things do court consider in bolton v stone case
magnitude of harm - (how big is risk
practicaltiy of cautions ( what did they do/can be done to mitigate risk)
what did court say for the two considerations in bolton v stone
magnitude of risk - over 50 years of cricket field being there it been know that balls sometimes leave the field, but 1st time someone been hurt
praccticaltity of aution - they did a lot made 17ft ence above and 8ft fence below so they did try guard against all kind of risk to peoplew
what was the question after considering the magnitude and practiclaoity of cautinons in bolton v stone
have tehy done waht they need to do reasonably ro elimate risk
what did court day in t eh end / answer to the question
ricket club did what could reasonably be expected of them and s they not repsonsible for the damge that has been caused
they met reaosnable standard given teh size of risk and and what is avaialbel for them to do
what is teh additonal factor in the blton v stone case hint :value
club had social value
court wants circket club to exist
if cricket club exists there is gonna be some risk
what case do we use for social utility of a defendants action
Watt v Hertfordshire Coucnil 1954v
what is socialt utliity of a defendant acion means
if someone gets hurt and wants to bring a claim of negligence against you the question is asked how valuable it was that you were doing what you were doing
watt v hertfordhire coucil 1954
firemen respond to car accident
they were nearest repsondents w the equiment needed but didnt hve right vehicle to transport it
so firefighters held on and one got a serious leg injury so tried to claim financial compensation saying firefighers didnt take sufficeint precautinosn causing him harm
but court saidfd 0 how noble were goals og the fire authourity and why did they subject firefighters to this kind of risk - to save someones life who they did by transporting this equipment
what was result of watts v hertfordhire council and why
ff got no compensation
casue authority is found not tohave breached its duty
did what was reasonably expected for them to do
whats trhe bottom line of social value
some things services/jobs/placces proivde useful functios and we wantthm to exist thereifre we hav eto assume some risk into teh process
which will be factored into whether or not you’ve fallen below the appropriate standard
what question does special cahrateristics of a claimant and defendant show
does claimant/ defendant have anything in particular about them that might alter required reasonableness
what case do we use for speicla characterisitcs of a cllimaant and defendant - claimant side
PARIS V STEPNEY BOROUGH CONCUL
what happned in paris v stepney borugh council
paris only for one eye
was working in garage
got a piece of metal in one yee and was completley blinded
goes to claim injury but garage say no one got to wear safety goggles we dont think it is reasonable
in the case of paris v stepney borugh council if someoen had sight in both eyes what wouldthe ocmpnesation be like and why
compensation would be less
because they would only be partially hurt
what did court say in case of paris v stepney
may be considered reasonable as standard for teh avg employee but when ot soeone in employment w special cahractersitics and only got use of one eye - standard of what you think is reasonable changes in relation to them
so it was reasonable to provide goggles and you were aware of additional risk faced by person
reasoable standard can be x depending on who you are
reduced
waht case shows us where speial cahractersitics of climand and defendant is - reduced
mullins v richard
whampum in mullins v richard
2 girls at school have fight w ruler
piece of ruler goes in one girls eye and she looses partial sight
brings claim agaisnt other girl saying you owe me a duty of care and breahed it when we fought
what does court say in mullins v richard
got to assess fact these were 15 year olds- so they would have lower understanding of risk and danger than an older person
casue fednadnt young we not gonna say they fell belowe reaosable standard epeected of a 15 year old
gie a scenario or ereample wehre the 15 year olds could have fallen below the standard of reasonableness or someone else in situation
if they were playing w dire
or if she was in fight w adult - adult wouldve fallen belowe reasoannel stadard of care
what case do we use for inexpereicne
nettleship v weston 1971
what does the inexperience case highlight
if you driving as a learner
standard of reasosnabelsness expected of you is that of reasonably competne driver -regrdless of inexperience
the inexpreience case is the same for what kind of positons
trainees
why is the inexperience case is the same for trainee positions + additionality
because supposed to be in tlaw protected by a senior e.g instructor sitting next to you
so you not alone
+ for whole systemt o work there is lots of insure against risk
so standard we expect is that of reaosnably competent road users
professional person
for profesional person what si the standard of care
defendant must show defree of compeltence usaully to bbe expectd of an ordniary professional skilled in that profession
in short for a professional what is the standard of care
that of a resonBLY COPMETENT professinoal
bolam v firern banet hospital amangment comitte 1957
treatment for illness needs electric shocks administered to body
either gt given relaxants or not
relaxant as have extremem movements and can fracture/injure yourself
but relaxants ahve a small fatal risk
in bolam case got severla broken bones
what did court say in Bolam v fruern barnet hospital mangement
in case where there are two differnt opnion jsut becuase pyshia picks one and not the otehr don’t make them competent
if both approaches are reaosnably accepted either approach could be justifiable - ust casue something went wrong dont mean it was incompetence or unreasonable
espeeciallty if been ntofied of diff risks and there isn’t a perfect option
proviso
where conflicting medical opinion exists
practice adopted must be based on logical and defensible grounds
i.e can it withstand logical analysis
what happened in bolitho v city and ahckenty health authority
child died
phsyciian was suposed to come attend but pager was low on battery so it didnt beat
claim purused against hospital but hosital said even if we arrived we wouldnt have intubated this cild it wouldn’t have made any sense to do that
you may have wanted them to do that but it wouldnt have made logical sense based on logical oopnion
child was already w something fatal
causationin law and remoteness of damafe
if someone fallen belowe reasosnable standard they hahvhe
breached duty of care
to get over the line in negligence we have to think about causation which means
how closely connected is negligent act and climnts harm
is there a link sufficiently close in law/fact
what are the two things we look at in causation
factual causation
legal causation
in factual causation what test do we look for
but for
what is but for test
would claimnat have incurrd the damage ‘but for’ the defendants negligence
what case do we use in the but for test
barnett v chelsea & kensington hospital managment comittee
what happned in barnett v chelse and kengisngot hospitla
guy shows up apparently drunk(but had arsenic poisining) so hospital turned him away
he died a few hours later
barnett purseud hospital saying you breached standard of reasnoably competne professionals when you ffailed to identify him as suffering from arsenic poisingin
wwhat did court say in barnet v kensington and chelsea
yah but hospital suceeded on the causation issue the claimant’s estate can’t prove causation casue at that point the posingin was already fatal
if he was diagnosed then and there he would have died anyway
so their negligence didnt casue his harm
legal caustion relates to
the remoteness of damage
what is the remoteness of damage
damage not reasonably forseeable is too remote for the breach and therefore not recoverable
what case do we use for legal caustion - the remoteness of damage
overseas tankship ltd v morts dock & engineering co
(the wagan mound)
in terms of remotness of damag we are only interestd in
damage that is reasonably forseeable
what haooend in wagon mound case
oil spillage
business nearby cicerned it will start fire
it was estalished the oil i svirtully non flammable
weldig firm on edge of harbour been expeling spark but also expellingothe rhtifns whihc ignies oil
wha twasdeicded in the wagnmound case
it was decide they were a step away from direct contact between oild and fire
the damge was to remite
the risk of flammabilty s low that idea other factors could come together ot casue exact chemical repsonesthat would igninte the oil is too remote for the damge to e something the tanker copny are repsonisble for
damage got to be reaosnably forseeable
civil liability
(civil liability) once the damage has been established that the damge was a reasonably forseeable consequence of the defendants breach, ….
the defendant will be liable for all the damage of that type no mater what the extent is
you’ve got to take the victim …
As you find them
youve got totak evictim as yu find them what does this mean
if you punch someone they might be someone who gets bruised and is fine you resposnbel for commiting the act
if you punch them they might get black ye but same punch kills a person - you resposnibe for whatever happens to them - whether blak eye or they die
what does the egg shell skull rule pricniple illustrate
the act you nuh know fragilitie of the victim
what is the cases use for civil liabiltiy
smith v leech brain and co 1962
vacwell engineering co v bdh chemicals 1971
whats case for eg shell skull rule
page v smith 1995
smith v lechbrain & co
guy at work got molten iron on his lip
already had prercancerus cell i his lip (that no one knew about)
burn excarbetaed his cancer and he died of it
courts found phsycial injry from molten burn was foorseeable
forseableharm has been established - so ffarage full repsonsible forhis death
vavwell enginereing co v bdh chemicals ltd 1971 + outcome
lab got sent ampools of chemicla v lil signs that said they were hazardous in water
scientist where washing them up in water and exploded w such force it destroyed buldings and killed scientist
outcoe - once responsible for damge arising from failure to properly label products
you responsible for lll the damage so BDH repsonsibl
Page V Smith
guy in car accidnet and he’d been suffering from chroinc fatigue syndrime
got into car accident whihc excarbeated chronic and permanent condition
court says you can imagine if you’re ina car accidnt youll be physcially harmed , it dont matter the the kind of phsycial harm that is suffered and dont matter whether unexpected o odd
so defendant i repsonisble for excarbetaed develoepmtn of fatigur condition casue they respponisble for wahtever physical injury arose as a resultt of car accident.
questio is wwhat type of harm are you suffering and is it reasonably orseeable as a result of somenes action that falls below reasonabl standard
