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Tort 1 Flashcards

1
Q

Is duty of care owed?

A

First - is there precedent?
Caparo v Dickman 3 Stage Test
1. objective foreseeability of harm
2. sufficient proximity between claimant and defendant
3. fair, just and reasonable to impose a duty

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2
Q

establish duty in novel case

A

Robinson v Chief Constable West Yorkshire- Caparo approach, develop the scope of duty of care incrementally by analogy with established authorities (proximity where D assumed responsibility for claimant)

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3
Q

Fair, just, reasonable

A

social/political/economical impacts of decision- policy considerations:
floodgates/insurance/crushing liability/deterrence/maintenance of high standards/defensive practices

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4
Q

Floodgates

A

open legal floodgates - deluge of claims (duty to avoid causing psychiatric harm), overwhelming no. cases

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5
Q

Crushing liability

A

finding party liable causes them to pay damages disproportional to wrong committed

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6
Q

Insurance

A

D more likely to be liable if they are/should have been insured- means to pay damages
loss distribution- finding insured party liable spreads the cost of compensation through society

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7
Q

defensive practices

A

parties act in undesirable way to avoid claims

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8
Q

Watson v British Boxing

A

C- immediate medical attention at ringside should be available upheld (injury foreseeable, D assumed responsibility, fair just and reasonable- non profit doesn’t provide immunity in negligence)

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9
Q

Driver owes duty of care

A

Nettleship v Weston

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10
Q

Medical professionals owe duty of care once accepted for treatment

A

Cassidy v MoH

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11
Q

DoC if rescuing workers in danger (reasonably foreseeable)

A

Baker v T.E. Hopkins and Sons

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12
Q

Police owe DoC to public to protect them from reasonably foreseeable physical injury during arrest

A

Robinson v Chief Constable West Yorkshire

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13
Q

Donoghue v Stevenson

A

seminal case for establishing principle of duty of care (now case law determines if owed)

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14
Q

objective foreseeability of harm

A

what a reasonable person could have been expected to foresee

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15
Q

is there duty on mere failure to act/omission?

A

generally NO (Smith v Littlewoods) (e.g. stranger sees child drowning no duty to help)

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16
Q

Exceptions to no duty on omissions

A
  1. statutory duty (positive duty imposed)
  2. contractual duty
  3. D has sufficient control of C (parent over child)(Reeves- police on prisoner to not self-harm)
  4. D assumed responsibility for C (Barrett v MoD)
  5. Where D creates the risk
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17
Q

Ambulance Service owe a DoC to respond to 999 calls within a reasonable time

A

Kent v Griffiths (answering call creates sufficient proximity.)
(not breaches where prioritising more pressing emergency/choice of allocation of resources)

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18
Q

No DoC on failure to prevent 3rd Party causing harm to another

A

Smith v Littlewoods

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18
Q

Exceptions to preventing 3rd party from causing harm

A
  1. sufficient proximity between D and C
  2. sufficient proximity between D and 3rd party
  3. D created the danger
  4. Risk on D’s premises
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19
Q

Fire Brigade owe NO DoC to attend fire but if they do have DoC to not make it worse through positive act

A

Capital and Counties v Hampshire- firefighter turned sprinkler off

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20
Q

Police owes no DoC to respond to emergency calls

A

Alexandrou x Oxford (respond to burglar alarm)

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21
Q

Sufficient proximity between D and C

A

identifiable victim at risk above public + D assumed responsibility for C’s safety = sufficient proximity
Stansbie- contractual relationship (prevent burglary)
Home Office v Dorset Yacht- Cs identifiable victims at particular risk of damage over public at large v Swinney v Chief C Northumbria- random potential victim of Yorkshire ripper
Mitchell v Glasgow, CN+GN v Poole - must assume R through words/conduct

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22
Q

Sufficient Proximity between D and 3rd Party

A

DoC where D has responsibility to control/supervise 3rd Party- 3rd party under care/control of D

Home Office v Dorset Yacht= supervisory relationship
Hill v Chief Constable West Yorkshire 3rd party not under police care/control- no duty
Palmer v Tees Health- patient not under authority’s care/control at time harm done

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23
Q

D creates Danger- DoC owed to 3rd party

A

D creates/allows creation of danger -> C injured, D liable even if 3rd party caused damage (Stansbie(

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24
Q

Danger on D’s premises- DoC owed

A

if D knows/should know of danger caused by 3rd party on their premises, owe DoC to anyone injured - Smith v Littlewoods

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25
Q

Robinson categories of exceptions to no DoC owed to 3rd parties

A
  1. A assumed responsibility to protect B
  2. A prevents another from protecting B
  3. A has special control over source of danger
  4. A’s status creates an obligation to protect B
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26
Q

Does public body owe DoC?

A

same principles apply as to individuals but even if DoC concluded it may not be imposed if incompatible with intentions of statutory scheme under which the body operates
having power to do so and not= omission (not liable unless same principles as individuals )

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27
Q

CN and GN v Poole council

A

no duty to take children into care even with power to do so, act which is normally breach cannot be if authorised by Act of Parliament- parliamentary sovereignty
DoC won’t be imposed relating to omission just because they have positive duty from statute

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28
Q

should duty be imposed on public body?

A

taxpayer pays damages
defensive practices- restricted public services in fear of litigation
fair just and reasonable policy concerns-
consider operational v policy (court can’t interfere with policy- Rigby)
Yorkshire ripper- Hill- defensive +floodgates failing to apprehend criminals (so many claims that body financially/practically overwhelmed)

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29
Q

Phelps v Hillingdon

A

duty imposed
LA assumed responsibility for child’s education- owed appropriate education

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30
Q

Jebson v MoD

A

duty imposed
Commander owed C soldier duty for impliedly assuming responsibility for safety, breach due to lack of supervision/proper transport

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31
Q

Army does not owe DoC to soldiers in battle conditions (in active combat)

A

Mulcahy v MoD

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32
Q

How to establish Standard of Care expected ?

A

Objective - D must behave as a reasonable person would in all circs. (Blyth v Birmingham)

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33
Q

Standard of Care based on Act not Actor

A

Nettleship v Weston - learner driver judged as ordinary driver
Wilsher v Essex- junior doctor judged according to act
but Condon v Basi- higher degree of care expected from 1st footballer v local league

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34
Q

Professional standard of care- Bolam v Friern Hospital

A

what the reasonable professional in that field would have done- ordinary reasonable man exercising and professing to have that special skill

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35
Q

Standard of care for children

A

reasonable child of the D’s age doing that act (Mullin v Richards)

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36
Q

Roberts v Ramsbottom

A

driving whilst knowingly impaired- judged by reasonably competent driver (should’ve stopped the car)

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37
Q

Mansfield v Weetabix

A

driver crashed but didn’t know he was impaired- judged as a reasonably competent driver who is unaware that he is suffering from a condition impairing his ability to drive

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38
Q

Has D breached their duty (fallen below Standard of Care ascertained)?

A

Consider all facts and circumstances including:
1. Likelihood of harm
2. Magnitude of harm
3. Practicality of Precautions
4. Benefit of D’s conduct
5. Common practice
6. State of the art at time of breach
7. Special rules in relation to sports

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39
Q

Breach of duty- likelihood of harm

A

Bolton v Stone- low risk of injury- reasonable person doesn’t take precautions against every risk just those reasonably likely to happen
Haley v London Electricity- precautions made around hole for sighted but not blind- negligent

40
Q

Breach of Duty- magnitude of harm

A

Paris v Stepney- one eye no goggles- risk significant
Watson v British Boxing- harm was serious brain damage

41
Q

Breach of Duty - practicality of precautions

A

cost v severity of risk - reasonable amount of precautions for foreseeable risk not all
Latimer v AEC- sawdust v flood, risk of slipping not worth closing factory

42
Q

Breach of Duty - Benefit of D’s conduct

A

risk taken with aim of preserving life/limb/property weighed against damage of risk
Watt v Hertfordshire- fireman not liable for not securing equip when rescuing (risk of injury small v saving life)
Ward v LCC- fire engine held liable for going through red light on way to a fire
Compensation Act 2006- requirement to meet SoC may have deterrent effect of liability on socially desirable activities
Social Action, Responsibility and Heroism Act 2015- no liability

43
Q

Breach of duty- Common Practice

A

following others in field, D can escape liability but court can rule common practice negligent- Re Herald of Free Enterprise
more expertise needed more weight to common practice compared to other factors

44
Q

Breach- State of the art defence

A

D’s actions v accepted practice/knowledge in profession at time of breach
Roe v MoH- unforeseeable risk can’t be guarded against

45
Q

Breach of duty - sport

A

risk taken in heat of game- Woolridge v Sumner- nothing short of reckless disregard for claimant’s safety is breach
Watson v Gray- breach if reasonable participant of D’s level would have known there was a significant risk that what they did could result in serious injury

46
Q

Re Wagon Mound (No 2)

A

all factors must be balanced- low likelihood of harm of oil ignition but high magnitude of harm and easy precautions available - breach of duty found

47
Q

Burden of proof on Claimant to show breach of duty

A

Claimant must collect evidence to show D breached - can be difficult but aided by s11 of Civil Evidence Act 1968- if criminal prosecution brought against D, C can rely on this if conviction is evidence of careless conduct
C also aided by res ipsa loquitur- facts speak for themselves- only explanation for C’s injuries is D’s negligence - then D must adduce evidence showing otherwise

48
Q

Scott v London and St Katherine Docks

A

res ipsa loquitur helps where claimant can’t prove exactly how accident occurred- sacks of sugar falling on her but they were in D’s control

49
Q

Conditions for res ipsa loquitur to apply (help C in breach of duty)

A

All must apply
1. thing causing damage under control of D/someone D is responsible for
2. Accident would not normally happen without negligence
3. Cause of the accident is unknown to the C (C has no direct evidence of D’s failure to take care)

50
Q

Is ascertaining the Standard of Care to be expected of D a question of law or fact?

A

Question of Law

51
Q

Has D fallen below the Standard of Care? Is this a question of law or fact?

A

Question of Fact

52
Q

Has D breached duty where SoC is professional standard?

A

Bolam Test- doctor not guilty of negligence if acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art

53
Q

What constitutes a responsible body?

A

De Freitas v O’Brien and Connolly- 11 surgeons out of 1000 a responsible body given their qualifications/experience

54
Q

Bolitho v City and Hackney Health

A

Body of opinion relied upon must demonstrate that the opinion has a logical basis (courts decide this)
must be responsible/reasonable or respectable
in forming their views they have weighed the comparative risks and benefits and reached a defensible conclusion on the matter

55
Q

State of the art defence in professional context

A

Crawford v Charing Cross Hospital- new info published 6 months before breach- claim failed as impractical/unrealistic to know every new development in their field (old case with internet may be diff)
BUT
GMC: doctors must do what’s reasonable to keep up to date with new developments through professional development courses
Gascoine v Sheridan- doctors must follow changes in mainstream lit not necessarily aware of obscure journals’ info

56
Q

Test for considering whether a medical professional is in breach for failure to warn of risks of procedures

A

NOT Bolam Test
Montgomery v Lanarkshire- patient must be made aware of material risks involved in recommended treated and of reasonable alternative/variant treatments
Material risk= one which that patient would attach significance to (doctor is reasonably aware of/should be)
can withhold info is detrimental to patient’s health
excused from conferring with patient in times of necessity (e.g. urgent care needed but patient unconscious)

57
Q

McCulloch 2023

A

Bolam Test doesn’t apply to the obligation to take reasonable care to ensure the patient is aware of any material risks involved in any treatment (not up to medical profession but courts)
Bolam Test applies to the obligation to take reasonable care to advise the patient of any reasonable alternative/variant treatments ( if treatment not reasonable alternative for patient, dr not negligent of failing to inform them if doctor’s view supported by a responsible body of medical opinion

58
Q

Factual causation

A

did the D’s breach cause the C’s loss
but for test- but for the D’s breach of duty would the C have suffered the loss at that time in that way (on balance of probabilities more than 50%)

59
Q

Barnett v Chelsea and Kensington Hospital

A

failed on causation- patient would’ve died from poison even if examined- negligence made no difference

60
Q

Wilsher v Essex

A

but for test failed
5 possible causes of blindness- only 1 tortious
1 factor solely responsible
burden of proof for C- couldn’t prove more than 20% (not more than 50(can’t be equal)
no link between negligence and loss

61
Q

Standard of proof in civil actions

A

balance of probabilities (more likely than not)

62
Q

Factual causation- clinical negligence where breach is failure to advise on risks

A

Chester v Afshar- court- but for test is satisfied if claimant can prove than on the balance of probabilities if they had been warned of the risk they wouldn’t have had the surgery/would have postponed it (to a time with lesser risk)(even if low risk)

63
Q

Factual causation when but for test not satisfied

A

material contribution test
material increase in risk test
loss of chance for pure economic loss

64
Q

Material contribution test (cumulative causes)- apply when more than one potential cause of loss and causes acted together, breach must be more than negligible

A

Bennington Castings v Wardlaw
tortious and non tortious dust - on balance of probabilities did the D’s breach make a material (more than negligible) contribution to C’s disease? Yes here

65
Q

Bailey v MoD

A

choke on vomit -> brain damage
non tortious + tortious lack of care which made a material contribution to brain damage

66
Q

Material increase in risk- industrial disease single agency cases only

A

McGhee v National Coal
but for and material contribution failed
but D’s breach materially increased (greater than de minimus) the risk (not loss itself) of dermatitis (one agent one tortfeasor)
Fairchild v Glenhaven funeral- mesothelioma (1 agent several tortfeasors- exposure to asbestos)

67
Q

Loss of chance test

A

Hotson v East Berkshire health- C argued he had lost 25% chance of recovery due to D’s negligence and should be awarded 25% loss- rejected by HoL (doesn’t apply to medical negligence/personal injury- just pure economic loss- Allied Maples v Simmons- real and substantial chance seller would have agreed

68
Q

Apportionment

A

once FC established. Where multiple tortious factors, courts apportion liability between the Ds in a way that produces a practical result, providing compensation to the C whilst recognising fault of each D
Fitzgerald v Lane and Patel- 25% of loss each

69
Q

apportionment mesothelioma

A

s3 Compensation Act 2006- Ds joint and severally liable - any and all employers who exposed C to asbestos liable for whole sum of damages (can recover contributions from each other)

70
Q

Multiple sufficient causes

A

distinct separate losses passing but for- later action may be non tortious even if FC of later loss. If 2nd D has not caused additional damage they won’t be liable. (Performance Cars v Abraham)

71
Q

Multiple sufficient causes Baker v Willoughby

A

2 tortious events - 1st D liable for initial injuries and continuing effects of their tort past 2nd event. 2nd D if found liable for additional losses.

72
Q

Multiple sufficient causes- Jobling v Associated dairies

A

Tort followed by natural event- D liable for damage up to natural event (2nd even can be NAI in claim against D)
natural event can be developing condition

73
Q

Factual causation

A

link between the breach and the damage

74
Q

Legal causation

A

has the link between the breach and the damage been broken by an NAI

75
Q

3 Types of Novus Actus Interveniens

A

Acts of God
Acts of Third Parties
Acts of the Claimant

76
Q

NAI- Act of God

A

can break the chain of causation if an exceptional natural event (lightning/flood/disease)
Carslogie Steamship- storm damage held as NAI
will not break if foreseeable and D should take them into account as likely

77
Q

NAI- Acts of third parties

A

only NAI if highly unforeseeable
Knightly v Johns - police officer injured by traffic highly unforeseeable
where 3rd party is medical treatment- rare that it breaks chain unless so gross and egregious as to be unforeseeable (Wright v Cambridge- this failed)

78
Q

NAI- acts of the claimant

A

act must be highly unreasonable - rare to break chain of causation as usually defence of contributory negligence (reducing damages accordingly)(McKew v Holland- fell on steep staircase v Wieland v Cyril Carpets- acting carefully)

79
Q

Test for Remoteness

A

Type of damage suffered must have been reasonably foreseeable at the time of the breach (The wagon mound no1)

80
Q

Wagon Mound No1

A

negligent oil spill led to fire- pollution damage foreseeable fire was not- loss was too remote

81
Q

Bradford v Robinson Rentals

A

fan heater in worker’s van broken- frostbite foreseeable

82
Q

Tremain v Pike

A

injury from rat bites foreseeable but not from rat urine- Weil’s disease too remote unforeseeable (more difficult to prevent than cold in Bradford)

83
Q

Approach of courts to remoteness

A

broad approach to the type of foreseeable damage esp for personal injury ( Page v Smith (psychiatric) type of harm that had to be foreseeable was personal injury/ physical or psychiatric harm)

84
Q

if type of damage foreseeable, no need for D to foresee the exact way the damage occurred

A

Hughes v Lord Advocate (oil lamps fell in manhole and exploded- burns foreseeable even if exact manner not)

85
Q

no need to foresee the extent of the damage (even if greater than expected/thin skull)

A

Vacwell Engineering v BDH Chemicals - negligence causing major chemical explosion even if minor only foreseeable - liable for full extent of the property damage

86
Q

Thin skull/egg shell skull rule

A

D must take their victim as they find them (Smith v Leech Brain - burn provoked pre-existing cancer- liable for full damages of cancer)
if D can foresee original injury (type of harm) they are responsible for everything that flows from that injury

87
Q

Thin skull rule- impecuniosity (lack of money)

A

Lagden v O’Connor- hired car on credit whilst in debt waiting for D to fix his car- D liable for full economic loss (even though higher because of C’s lack of money)

88
Q

D must prove a defence on balance of probabilities

A
89
Q

Defence - consent

A

D must prove that C
1. had capacity to give valid consent to risks (Reeves- prisoner suicide)
2. had full knowledge of the nature and extent of the risks (subjective test- Morris v Murray- drunken pilot passenger)
3. agreed to the risk of injury (Dann v Hamilton- drunk driver caused accident on purpose)
4. agreed voluntarily (Smith v Charles Baker- employees don’t voluntarily run risk - difficult to prove consent for employees, Baker v TE Hopkins)

90
Q

If successful, consent acts as a complete defence

A

Claimant gets no damages

91
Q

Consent can be negated by statute

A

s149 Road Traffic Act 1988- drunk driver can’t rely on consent for injured passengers who knew
s2 Unfair Contract Terms act 1977- Ds acting in course of business (not when C is consumer)- can’t exclude/restrict liability for death/personal injuries (other types of loss subject to reasonableness), awareness of restrictive term not voluntary accepting risk
s65(1) CRA 2015- traders can’t limit/exclude liability for death/personal injury through negligence, awareness of restrictive term not voluntary accepting risk,

92
Q

Consent (medical negligence)

A

Nettleship v Weston - knowledge of risk of injury/willingness to take risk of injury not enough. Nothing short of an agreement to waive a negligence claim will suffice.

93
Q

Being aware of a term limiting/excluding liability for certain losses

A

doesn’t mean the party consents to those risk/losses

94
Q

Defence- contributory negligence

A

S1 Law reform Act- Claim not defeated but damages reduced
Jones v Livox- D must establish
a) the Claimant failed to take reasonable steps for their own safety
b) that this failure contributed to the Claimant’s damage

95
Q

Effect of contributory negligence

A

reduces D’s liability, C’s damages reduces as far as just and equitable - partial defence, most commonly raised + successful

96
Q

Contributory negligence- failure to take reasonable steps for safety

A

C must take same degree of care that a reasonable and prudent person would take - objective
Owens v Brimell - drunk is no excuse for not taking reasonable steps for own safety
Sayers v Harlow- must be safe when escaping trap

97
Q
A
98
Q
A

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