The Law of Tort

Question 1

What is negligence?

Answer 1

An act or failure to act which causes injury to another person or damage to their property

Question 2

What must be proved for negligence?

Answer 2

Duty of care
+
breach of duty
+
damage caused
=
liable in negligence

Question 3

What is duty of care?

Answer 3

A legal relationship between the parties involved

Question 4

What is the neighbor principle?

Answer 4

The person who is owed a duty of care by the defendant.

Question 5

What case did the neighbor principle come from?

Answer 5

Donoghue v Stevenson 1932

Question 6

What are the factors of the three part test?

Answer 6

1. Was the damage or harm reasonably foreseeable?
2. Is there a sufficiently proximate relationship between the claimant and the defendant?
3. Is it fair, just and reasonable to impose a duty?

Question 7

Negligence key case:
Donoghue v Stevenson 1932

Answer 7

On August 26 1928, Mrs. Donoghue’s friend bought her a ginger-beer from Well meadow Café [1] in Paisley. She consumed about half of the bottle, which was made of dark opaque glass, when the remainder of the contents was poured into a tumbler. At this point, the decomposed remains of a snail floated out causing her alleged shock and severe gastro-enteritis.
Donoghue could not sue due to the fact that they were not an original party of the contract

Question 8

What is the 3 part test?

Answer 8

An update of the neighbour principle to show who is owed a duty of care in negligence

Question 9

Where did the three part test come from?

Answer 9

Caparo v Dickman 1990

Question 10

What case overruled Caparo v Dickman?

Answer 10

Robinson v Chief Constable of West Yorkshire 2018

Question 11

What is breach of duty?

Answer 11

When the duty of care has been breached

Question 12

What should be considered when it comes to breach of duty?

Answer 12

Person involved
Risk factors involved

Question 13

What is the judgement for breach of duty when it comes to professionals?

Answer 13

judged according to standards in profession
e.g. a junior doctor will be judged the same as a fully qualified doctor

Question 14

What case links to professionals and breach of duty?

Answer 14

Bolam v Friern Barnet Hospital management 1957

Question 15

What is the judgement for breach of duty when it comes to learners?

Answer 15

learners should be judged at the standard of the competent, more experienced person

Question 16

What case links to learners and breach of duty?

Answer 16

Nettleship v Weston 1971

Question 17

What is the judgement for breach of duty when it comes to children and young persons?

Answer 17

Judged at standard of the defendants age at the time accident

Question 18

What case links to children and young persons and breach of duty?

Answer 18

Mullin v Richards 1998

Question 19

What is the risk for breach of duty when it comes to vulnerable victim?

Answer 19

Has the claimant any special characteristics to be taken account of?

Question 20

What case links to vulnerable victims and breach of duty?

Answer 20

Paris v Stepney Borough Council 1951

Question 21

What is the risk for breach of duty when it comes to size of risk?

Answer 21

Greater care should be taken if higher chance of injury

Question 22

What case links to size of risk and breach of duty?

Answer 22

Bolton v Stone 1951

Question 23

What is the risk for breach of duty when it comes to cost of precautions?

Answer 23

Risk involved is balanced against the cost and effort of taking precautions

Question 24

What case links to cost of precautions and breach of duty?

Answer 24

Latimer v ACE 1954

Question 25

What is the risk for breach of duty when it comes to knowledge of danger?

Answer 25

If risk is not known at the time of accident, can be no breach If high risk injury the standard of care is higher

Question 26

What 2 cases links to knowledge of danger and breach of duty?

Answer 26

Roe v Minister of health 1954 Haley v LEB 1965

Question 27

What 2 cases links to public benefit and breach of duty?

Answer 27

Watt v Hertfordshire 1954 Day v High performance sports 2003

Question 28

What is the risk for breach of duty when it comes to public benefit?

Answer 28

Greater risks can be taken in emergency situations Duty of care not breached in view of emergency

Question 29

What is damage?

Answer 29

The legal tests of a loss to the claimant from a breach of duty

Question 30

What is the test of factual causation?

Answer 30

'But for' test

Question 31

What is the 'but for' test?

Answer 31

but for the defendants acts or omissions the injury or damage would not have occurred

Question 32

What case illustrated the 'but for' test?

Answer 32

Barnett v Kensington Hospital Management committee

Question 33

What is causation?

Answer 33

A link between the defendants acts or omission and the injury, loss or damage caused tot he claimant

Question 34

What does Novus Actus Interveniens mean?

Answer 34

An intervening act to break the chain of causation

Question 35

What is remoteness of damage?

Answer 35

The defendant is liable for the injury or damage that is reasonably foreseeable

Question 36

Where does the rule for remoteness come from?

Answer 36

The Wagon Mound 1961

Question 37

What is another reason the defendant will be liable for injury?

Answer 37

The injury must be reasonably foreseeable

Question 38

What is reasonably foreseeable?

Answer 38

Damage or injury, which a reasonable person should predict or expect from their actions

Question 39

What 2 cases was this illustrated in?

Answer 39

Hughes v Lord Advocate 1963 Bradford v Robinson Rentals 1967

Question 40

What is the 'eggshell skull' rule?

Answer 40

You must take your victim as you find them and the defendant is liable for all consequences of negligence

Question 41

What case was 'eggshell skull' rule illustrated in?

Answer 41

Smith v Leech Brain and Co 1962

Question 42

How is contributory negligence is a part defense?

Answer 42

Damages can be reduced if claimant has partly caused their own injurys

Question 43

what cases links to contributory negligence?

Answer 43

Sayers v Harlow UDC 1957

Question 44

How is the amount contributory negligence decided by the judge?

Answer 44

The judge will decide the amount the claimant is responsible and then reduce the percentage from the full amount

Question 45

what 3 cases links to amount contributory negligence decided by the judge?

Answer 45

O'Connell V Jackson 1972 Froom v Butcher 1976 Stinton v Stinton 1993

Question 46

What factors must the defendant must prove to have the defense of consent?

Answer 46

1. Knowledge of the precise risk involved 2. Exercise of free choice by the claimant 3. A voluntary acceptance of the risk

Question 47

What case links to the claimant having a full understanding of the risk?

Answer 47

Stermer v Lawson 1977

Question 48

What was the outcome of Stermer v Lawson?

Answer 48

No consent as the claimant had not been properly shown how to use the motorbike, and did not appreciate risks

Question 49

What case links claimant must have had a free choice in accepting risk of injury?

Answer 49

Smith v Baker 1891

Question 50

What was the outcome of Smith v Baker 1891?

Answer 50

The claimant had complained about the risks but had no choice but to continue with work

Question 51

What cases links to no consent if claimant is acting under a public duty?

Answer 51

Haynes v Harwood 1935 Ogwo v Taylor 1987

Question 52

What was the outcome Haynes v Harwood 1935 and Ogwo v Taylor 1987?

Answer 52

Police or fireman did not consent to injury when doing their public duty

Question 53

What case links consent in medical treatment?

Answer 53

Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals 1985

Question 54

What was the outcome of Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals 1985?

Answer 54

not every possible risk has to be explained before valid consent can be given

Question 55

What case links to consent only available if following orders?

Answer 55

ICI Ltd v Shatwell 1965

Question 56

What was the outcome of ICI Ltd v Shatwell 1965?

Answer 56

A claimant ignoring his employer's instructions and not following statutory rules cannot use the defence of consent

Question 57

what case links to consent is only available if a tort has been committed?

Answer 57

Woodridge v Sumner 1963

Question 58

What was the outcome of Woodridge v Sumner 1963?

Answer 58

Although the rider owed a duty of care there was no negligence can consent could not be argued

Question 59

what is occupiers' liability?

Answer 59

covered by two acts: Occupiers' Liability Act 1957 (lawful visitors) Occupiers' Liability Act 1984 ( trespassers)

Question 60

What is an 'occupier'?

Answer 60

An 'occupier' is anybody in actual control of the land

Question 61

What case defined 'occupier'?

Answer 61

Wheat v Lacon 1966

Question 62

What counts as premises?

Answer 62

A ship in a dry dock A vehicle A lift A ladder

Question 63

What case defined premises?

Answer 63

Wheeler v Copas 1981

Question 64

What is the duty and standard of care in the 1975 act ?

Answer 64

- A common duty of care is owed to all lawful visitors - Ensure that the visitor is safe for the purpose of the visit - Occupier must take extra care for children -A person carrying out a trade must prepare for the risks associated with the trade

Question 65

When will the occupier not be liable for the damage as a result done by an independent contractor?

Answer 65

- it is reasonable to entrust the work - A reputable contractor is chosen - The occupier is not obliged to to inspect work

Question 66

when can the occupier avoid duty?

Answer 66

- Adequate warnings are given - Exclusion clause can be relied on - Defences of consent or contributory negligence can apply

Question 67

according to the 1984 when is duty owed?

Answer 67

A) Occupier is aware of the danger or reasonable grounds to believe it exists B) They know or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may came into the vicinity of the danger C) The risk is one against which, in all circumstances of the case, he may be expected to offer the other some protection

Question 68

Which case states that the occupier does not have to warn adult trespassers of risk of injury against obvious dangers?

Answer 68

Ratcliff v McConnell 1999

Question 69

Which case states that the occupier does not have to warn adult trespassers of risk if trespasser enters at unforeseeable times of day or year?

Answer 69

Donoghue v Folkstone 2003

Question 70

Which case states that the occupier does not have to spend lots of money in making premises safe from obvious dangers?

Answer 70

Tomlinson v Congleton Borough Council 2003

Question 71

Which case states that the occupier will not owe a duty to a trespasser he does not expect to enter premises?

Answer 71

Higgs v Foster 2004

Question 72

Which case states that the occupier does not owe a duty for danger he is unaware of?

Answer 72

Rhind v Astbury Water Park 2004