the law of tort negligence Flashcards
what is tort law
it is civil wrong
what does civil law deal with
it deals with private dispute between people and organisations
what is tort law concerned with
with situations where a person has suffered loss or injury, or when property has been damage
what is a boarder term tort mean
“a tort occurs where there is a breach of a general duty fixed by civil law”
what is the claimant in a tort claim
it is the person/organisation bringing the civil claim usually an individual. they are asking for compensation not punishment
what is a plaintiff
it is a claimant but this word is use in American or older cases
what is the defendant in tort claim
it is a person/organisation who the claim is brought against
what’s remedies
it is if the claimant is successful, then the court will award a remedy
what is two remedies the claimant can be given
for damages they are given compensation.
an injunction is where the court order addressed to the defendant to make them to stop doing it.
who has the burden of proof
the claimant
what is the standard of proof and the percentages
it is on the balance of probabilities and is greater than 50%
what is the purpose of tort law system
To provide compensation to someone that has wronged or injured by someone else negligent activities
what is protected in tort
interests
tort law depends on what
upon the existence of interests which others have the obligation to respect
what are the failure to respect in tort law
your ‘person’- harm
your ‘ land and property’-indirect and direct
your ‘ economic loss’ in certain circumstances
what is the compensation culture
it implies that a significant number of claims for compensation for torts such as negligence are unjustified or fraudulent
what does critics argued with about compensation culture
argue that people should take greater responsibility for their own actions, accepting that are their own fault rather bringing claims
what is the main difference between tort law and contract law
it is the relationship between the parties
what do contract law in their relationship
there is a legal relationship between the parties as they have entered a contract with each other
what does nuisance mean
interference of enjoyment and use of land
what does defamation mean
damage of reputation
what are the three types of harm in tort of negligence
personal injury, damage of Property and economic loss
what is the 3 steps of negligence
- duty of care
2.breach of duty - causation
is there is no duty of care if you have caused damage
you will not be liable to the other party in negligence
how does duty of care work and an example
in many court cases it is clear that a duty of care exists and example is a road accidents, it is clear as a driver of a car you owe a duty of care to other road users
what do most courts look for in negligence
they look at what the defendant did and what damage was caused
what will courts consider when deciding whether a duty of care should be established
floodgates
impact in insurance
impact on social activities and business
public policy
what is a precedent
it is a judgement of a court of law city as an authority for deciding a similar set of fact.
what is a judicial precedent
it is a decision of the court used as a source for further decision making. also know as stare decisis and by which precedent are binding and must be followed
how does the duty of care work
it is every time the courts hear a new appeal case about duty of care and then makes a decision on whether a duty exists
why are duty of care cases important
they are important as they shape the law of negligence and courts can often be torn between doing justice in a particular and preventing a increase in cases
what case is linked with the neighbour principle
Donoghue v Stevenson 1932
what is the neighbour principle
it is one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour
what case is link to the two-stage test
Anns v Merton London borough 1967
what did lord Wilberforce argued
he argued it was no longer necessary to find a precedent with similar facts a duty of care was to be determined by
what are to two cases that link to establishing a duty of care
Caparo 1990
Robinson v chief constable of Yorkshire 2018
What is the 3 steps for the caparo test
1). Harm foreseeable
2). Proximity relationship
3). Fair, just and reasonable
What are the 3 steps if you don’t use the caparo test
1). Is there an automatic duty of care
2). Analogous cases (similar)
3). If not caparo
What is the ratio decidendi that lord bridge stated
“… in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist… the party to whom it is owed a relationship characterised by the law as one of “proximity”.. which the court considers it fair, just and reasonable that the law should impose impose a duty…”
What does reasonable foreseeability deal with
Deals with idea that it should be reasonably foreseeable that the defendant’s actions are ones that can be expected to cause loss or damage to anyone in the claiment’s position
What is a case that links to reasonable foreseeability
Kent v Griffiths 2000
What was the facts of the case of Kent v Griffiths
The fact that it was a person who foreseeable would suffer further injuries by a delay in providing an ambulance. The acceptance of the call of the call in this case established the duty. On the findings of the judge it was delay which caused the further injuries.
What in ‘relationship’ in law
I means that the situation they were both in meant that the defendant could reasonably be expected to foresee that their actions could cause damage to the claimant.
What must the claimant establish under the caparo test
1). The harm was reasonably foreseeable
2). That there was a relationship of proximity
3). That it is fair, just and reasonable to impose duty of care.
Why the test for duty of care objective
Because court will ask whether a reasonable person the D’s position would reasonably have forseen that the C would suffer injury or harm
Case that links proximity
Bourhill V young 1943
What are the facts of bourhill V young
C was a pregnant fishwife. She got off tram and D drove his motorcycle past tram and collided with a car 50 feet away from away fishwife. C heard collusion but did not-see it. The c saw the aftermath, went into shock and her baby was still born
What were legal point of bourhill V Young
Not duty of care was owed by D to C as there was not sufficient proximity between the C and D when the incident occurred
What do the courts do when deciding if
It is fair, just and reasonable
The courts are bringing in a public policy test to decide as whether a duty of care should be owed
What do the court take into account
Policy considerations to decide whether Duty of care should be owed, such as the police will not owe duty of care in negligence as it could lead to defensive policing
What case links to fair, just and reasonable - to impose a duty of care
Hill V chief Constable of w. Yorkshire
What the legal point of case Hill v chief of W. Yorkshire
Held that a duty can arise under that human rights act 1998 to investigate grave or serious crime which amounted totorture or degrading or inhuman treatment
What are the 3 steps of a breach of duty
1). The standard of care
2). Foreseeability of harm/loss
3). Degree of risk - must be consider
What case that links to standard of care
Blyth v Birmingham water works 1856
Why is reasonable contextual
As it will change in different scenarios.example doctor will be held to the same standard of context
What is the facts of Bolam 1957
A doctor did not give a patient relaxant drugs and wasn’t restrained and suffered major injuries. Doctor didn’t breach a duty
What did house of Lords make after the Bolam case
The Bolam test
“ a medical professional is not guilty of negligence if he acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art.
What are the facts of the case of nettle ship v Weston 1971 (learner)
D was a learner driver, taking a lesson with a friend. She couldn’t straightened the wheel and mounted the pavement and mr nettleship was trying to stop resulting in a fractured knee.
What is the legal point of the case of nettleship v Weston 1971
Everyone who driving is held to the same standard of care even if they are learning or a new driver. It is the same as a junior doctor will be held to same standard to doctor in general
Small risk?
Minimal precautious
Big risk?
Substantial precautious
The degree of risk is relevant in ?
In terms of how cautious the defendant ought to be
Precaution need only ever be reasonable
What one of the cases links to degree of risk
Paris v Stepney borough council 1951
What’s the facts of the case 0f Paris v Stepney borough council 1951
A man who worked in a aggregator got a mental sprinter in his sighted eye and became completely blind, his employer didn’t give him goggles. D argued that it wasn’t a breach of duty as he didn’t provide googles to worker with vision in both eyes and wasn’t a standard practice to.
what was the legal point of the case of Paris v Stepney borough council 1951
It was a breach of duty as the employer should of provided goggles because the seriousness of harm would have been greater that experienced by workers with sight in both eyes. The duty is owed to the particular claimant not to a class of persons of reasonable workers.
What are the 2 parts that damages is broken down to
- factual causation
- remoteness of damage (legal causation)
What is factual causation demonstrated through
The ‘but for’ test
What is the ‘but for test determine by
Whether, the ‘but for’ D’s act or omission, would the injury or loss occurred.
When is D liable in the ‘but for’ test
If the injury or loss would not have occurred
When is D not liable in the ‘but for’ test
If the injury or loss would have occurred anyway
What case link to factual causation (but for)
Barnett v Chelsea and Kensington hospital management committee 1969
What’s the facts of the case of Barnett v Chelsea and Kensington hospital management committee 1969
3 nigh watchmen went to A&E complaining oof vomiting after drinking tea. The duty doctor, didn’t examine them and told them to go home and rest. One of the men went home and died a few hours later of arsenic poisoning. Claimed that the doctor breached of duty for not examining them. However, evidence showed by the time C got to the doctor, there was nothing they could do.
The legal points of Barnett v Chelsea and Kensington hospital management committee 1969
No factual causation as the case failed the but for test. His death was not caused by the doctor’s breach of duty , it could not be said that’ but for’ the doctor’s failure to examine him, he would not have died
What is the test for remoteness of damages
It is reasonable foreseeability, such as the harm or injury suffered must not too, which can be said it is ‘unforeseeable’
Mainly about the particular injury or loss suffered by the claimant
What the case that links to remoteness of damage
The wagon mound 1961
What the facts of the case of the wagon mound 1961
Fuel oil had benne negligently spilled from D’s ship in the sea in Sydney harbour. The wind and tide carried the oil spill towards the C’s wharf. C was carrying out welding repairs. Two days later, the oil caught fire as a result the welding and C’s wharf burned down
What the legal point of the case of the wagon mound 1961
Although damage down to the wharf by the oil was reasonably foreseeable, fire damage was not reasonably foreseeable and therefor the damage too remote and there was no negligence
What is intervening acts (novus interventions)
There is no legal causation where there is an intervening act.
What the three chain of causation can be broken by
Act by the claimant
Act by nature
Act by third party
What case links to act by the claimant
McKew v Hollands 1969
What’s the facts of the case of mckew v hollands 1969
C sustained an injury at work due to his employer’s breach of duty. He strained his back and hips and his leg was prone to giving way. Whilst in this stated he attempted to climb down a steep concrete staircase without the handrail, got part way down there and felt his leg give way so he jumped 10 steps. He suffered a fractured ankle and left with a permanent disability.D accepted liability for the injury during his employment but disputed liability for the second injuries resulting in C actions.
What the legal points of mckew v hollands 1969
C’s action amounted to a novus acts interveniens because his actions in attempting to climb the steps unaided knowing his leg might give way was unreasonable. D was therefore not liable foe the injuries resulting from the incidence on the stairs.
What the case that links to act by nature
Carslogie steamship co. v royal norwegian government 1952
What’s the facts of the case of Carslogie steamship co. v royal norwegian government 1952
The heimgar was damaged in a collision with the carslogie. After temporary repairs. It encountered storm damage on its way to New York, requiring further repairs. The collision damaged was fixed before addressing the storm damage during a 30-day repair period in New York.
What’s the legal point of the case of Carslogie steamship co. v royal norwegian government 1952
It was held that Ds were only liable and responsible for the loss of profit resulting from the collision, not for further damages sustained by the natural events of the sea. The claim for loss during the 10 day period was not awarded. The chain of causation was broken by natural events
What the case links to act by a third party
Knightly v johns 1982
What’s the facts of the case of knightly v johns 1982
Mr. John’s negligent driving caused his car to overturn in a tunnel. Two police officers arrived and were instructed to close the tunnel entrance. Instead of taking the long route, one officer, Mr. John Knightly, drove on the wrong side of the road and collided head-on with another vehicle driven by Mr. Cotton. The key issue is whether Mr. John remains liable or if the actions of the other defendants and the claimant constitute a new intervening act.
What’s the legal point of the case of knightly v johns 1982
The senior officer’s instruction and failure to close the entrance to the tunnel were negligent and broke the chain of causation. C’s decision on going through the tunnels was not negligent. Thus the C was entitled to full damages for the senior officer and mr john was not liable
Does it matter if the type of damage is extreme
No, as long as the type of damage caused is foreseeable, the actual level of damage can be extreme
What case links to extreme damage
bradford v robinson rentals 1967
What’s the facts of the case of bradford v robinson rentals 1967
C was sent by his employer (D) to drive a long distance to exchange an old van for a new vehicle during extremely cold whether conditions. Neither of the vehicles he drove were heated and as a resulted, C suffered frostbite
What’s the legal point of the case of bradford v robinson rentals 1967
If the type of damages is reasonable foreseeable, it does not matter of the damage suffered is rare or extreme. Although. Frostbite is rare, injury through cold exposure could be foreseen in this case
What does eggshell skull rule
Must take victim as you find them
What case links to eggshell skull rule
smith v leech brain 1962
What the facts of the case of smith v leech brain 1962
C was burned on the lip by molten as a result of D’s breach of duty of care. He had an existing precancerous condition. The burn eventually brought about the onset of full cancer and the man died.
What’s the legal point of the case of smith v leech brain 1962
The burn was a foreseeable consequence of D’s negligence and this resulted in the death. D was liable for his death. It was not necessary to show that the death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The eggshell (thin) skull rule applies and D must take his victim as he finds him
What does unknown to science mean
It is not reasonable foreseeable if the accident occurred as a resulted of a totally unknown event
What case links to unknown to science
doughty v turner Ltd 1964
What’s the facts of the case of doughty v turner Ltd 1964
The cover on a cauldron of exceedingly hot molten sodium cyanide was accidentally knocked into the cauldron. C, a worker, was injured when the cauldron erupted like a volcano exploding. Scientific knowledge at the time was that there might be small splash but no violent explosion
What’s the legal point of the case of doughty v turner Ltd 1964
The claim failed. D employer owed a duty of care in respect of only foreseeable risks. In this case the risk of splashing of the liquid if the cover fell into it, not for the unknown violent consequences.
