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law > The Law of Tort > Flashcards

The Law of Tort Flashcards

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1
Q

What is negligence?

A

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

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2
Q

What must be proved for negligence?

A

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

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3
Q

What is duty of care?

A

A legal relationship between the parties involved

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4
Q

What is the neighbor principle?

A

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

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5
Q

What case did the neighbor principle come from?

A

Donoghue v Stevenson 1932

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6
Q

What are the factors of the three part test?

A
  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?
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7
Q

Negligence key case:
Donoghue v Stevenson 1932

A

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

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8
Q

What is the 3 part test?

A

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

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9
Q

Where did the three part test come from?

A

Caparo v Dickman 1990

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10
Q

What case overruled Caparo v Dickman?

A

Robinson v Chief Constable of West Yorkshire 2018

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11
Q

What is breach of duty?

A

When the duty of care has been breached

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12
Q

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

A

Person involved
Risk factors involved

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13
Q

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

A

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

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14
Q

What case links to professionals and breach of duty?

A

Bolam v Friern Barnet Hospital management 1957

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15
Q

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

A

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

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16
Q

What case links to learners and breach of duty?

A

Nettleship v Weston 1971

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17
Q

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

A

Judged at standard of the defendants age at the time accident

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18
Q

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

A

Mullin v Richards 1998

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19
Q

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

A

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

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20
Q

What case links to vulnerable victims and breach of duty?

A

Paris v Stepney Borough Council 1951

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21
Q

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

A

Greater care should be taken if higher chance of injury

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22
Q

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

A

Bolton v Stone 1951

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23
Q

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

A

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

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24
Q

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

A

Latimer v ACE 1954

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25
Q

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

A

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

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26
Q

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

A

Roe v Minister of health 1954
Haley v LEB 1965

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27
Q

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

A

Watt v Hertfordshire 1954
Day v High performance sports 2003

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28
Q

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

A

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

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29
Q

What is damage?

A

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

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30
Q

What is the test of factual causation?

A

‘But for’ test

31
Q

What is the ‘but for’ test?

A

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

32
Q

What case illustrated the ‘but for’ test?

A

Barnett v Kensington Hospital Management committee

33
Q

What is causation?

A

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

34
Q

What does Novus Actus Interveniens mean?

A

An intervening act to break the chain of causation

35
Q

What is remoteness of damage?

A

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

36
Q

Where does the rule for remoteness come from?

A

The Wagon Mound 1961

37
Q

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

A

The injury must be reasonably foreseeable

38
Q

What is reasonably foreseeable?

A

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

39
Q

What 2 cases was this illustrated in?

A

Hughes v Lord Advocate 1963
Bradford v Robinson Rentals 1967

40
Q

What is the ‘eggshell skull’ rule?

A

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

41
Q

What case was ‘eggshell skull’ rule illustrated in?

A

Smith v Leech Brain and Co 1962

42
Q

How is contributory negligence is a part defense?

A

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

43
Q

what cases links to contributory negligence?

A

Sayers v Harlow UDC 1957

44
Q

How is the amount contributory negligence decided by the judge?

A

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

45
Q

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

A

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

46
Q

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

A
  1. Knowledge of the precise risk involved
  2. Exercise of free choice by the claimant
  3. A voluntary acceptance of the risk
47
Q

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

A

Stermer v Lawson 1977

48
Q

What was the outcome of Stermer v Lawson?

A

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

49
Q

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

A

Smith v Baker 1891

50
Q

What was the outcome of Smith v Baker 1891?

A

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

51
Q

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

A

Haynes v Harwood 1935
Ogwo v Taylor 1987

52
Q

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

A

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

53
Q

What case links consent in medical treatment?

A

Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals 1985

54
Q

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

A

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

55
Q

What case links to consent only available if following orders?

A

ICI Ltd v Shatwell 1965

56
Q

What was the outcome of ICI Ltd v Shatwell 1965?

A

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

57
Q

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

A

Woodridge v Sumner 1963

58
Q

What was the outcome of Woodridge v Sumner 1963?

A

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

59
Q

what is occupiers’ liability?

A

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

60
Q

What is an ‘occupier’?

A

An ‘occupier’ is anybody in actual control of the land

61
Q

What case defined ‘occupier’?

A

Wheat v Lacon 1966

62
Q

What counts as premises?

A

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

63
Q

What case defined premises?

A

Wheeler v Copas 1981

64
Q

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

A
  • 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
65
Q

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

A
  • it is reasonable to entrust the work
  • A reputable contractor is chosen
  • The occupier is not obliged to to inspect work
66
Q

when can the occupier avoid duty?

A
  • Adequate warnings are given
  • Exclusion clause can be relied on
  • Defences of consent or contributory negligence can apply
67
Q

according to the 1984 when is duty owed?

A

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

68
Q

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

A

Ratcliff v McConnell 1999

69
Q

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?

A

Donoghue v Folkstone 2003

70
Q

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

A

Tomlinson v Congleton Borough Council 2003

71
Q

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

A

Higgs v Foster 2004

72
Q

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

A

Rhind v Astbury Water Park 2004

73
Q
A

law (6 decks)

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