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SQE 1 FLK 1 (B.K) > Tort 1: Negligence > Flashcards

Tort 1: Negligence Flashcards

1
Q

What must one prove for negligence?

A
  1. Duty of Care
  2. Breach of Duty
    * standard of care,
    * Did D fall below standard
    * Establish breach with evidence
  3. Causation
    * Factual
    * Legal: Remoteness + no intervening acts
  4. Any defences?
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2
Q

What does ‘tort’ mean?

A
  • Tort means wrong
  • A tort involves the infringement of a legal right (or breach of a legal duty) and it gives rise to a claim in the civil courts
  • A person who commits a tort is called ‘a tortfeasor’ and their liability is described as tortious.
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3
Q

What is the tort of negligence?

A

A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant

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4
Q

DoC- What are the types of duty of care situations?

A

Established duty situation
Novel duty situation (apply caparo test)

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5
Q

DoC- What is the neighbourhood principle?

A

Reasonable care must be taken to avoid acts or omissions likely to injure your neighbour.

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6
Q

DoC- What are the 3 elements of Caparo test for duty of care?

A
  1. Reasonable foresight of harm to the claimant.
  2. Sufficient proximity between the claimant and defendant.
  3. It must be fair, just, and reasonable to impose a duty.
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7
Q

DoC- When is there no duty of care?

A
  • Only applies to physical harm.
  • Harm caused by a public body
  • Omission to act (unless it makes a situation worse or there’s a special relationship).
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8
Q

DoC- What are some established duty situations?

A

-Road user to road user
- Employer to employee
- teacher to student
- Manufacturer to consumer
- D creates dangerous sit- rescuer

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9
Q

DoC- Why do public bodies owe a duty of care to the public at large, rather than individuals?

A

For policy reasons, public bodies have statutory powers that guide their responsibilities.

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10
Q

DoC- What is the Fire Service’s duty of care in emergencies?

A

There is no common law duty to respond to emergency calls, but once they do respond, they must not worsen the situation.

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11
Q

DoC- What is the status of the ambulance service regarding duty of care?

A

A duty of care exists once the ambulance service accepts an emergency call.

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12
Q

DoC- What are the police’s responsibilities regarding duty of care?

A

The police owe a duty to the public for crime prevention but can be liable for operational negligence; however, they are generally not liable for strategic decisions or omissions.

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13
Q

BoD- What are the 2 stages for considering whether D has breached DoC?

A
  1. Standard of Care
  2. Has D fallen below standard of care?
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14
Q

BoD- What is the definition on ‘standard of care’?

A
  • Reasonably competent person
  • Professionals: standard of a reasonable professional, focusing on act, not actor (standard not lowered/raised for experience)
  • Children: level of care expected of child that level
  • Under-skilled: Min standard req for that task.
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15
Q

BoD, SoC- What cases cover ‘act not the actor’

A
  • learner driver judged as ordinary competent driver (no allowance for learner) 🚙
  • Junior doctor standard is same as doctor (but may avoid breach is advice sought from senior doctor) 🧑‍⚕️
  • But pro footballer held to higher standard of care than casual player. ⚽️
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16
Q

BoD SoC- what is the general standard of care owed by a professional?

A

“ordinary reasonable man exercising and professing to have that special skill”

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17
Q

BoD SoC - When is the Bolam test not applied for professionals?

A

For medical professionals who failed to advise a patient properly of material risks - must make patient aware of material risks & any reasonable alternative treatments (particularly ones they’d attach significance to)

  • Not negligent if accordance with a responsible body of medical men (need not be majority 11 out of 1,000 spinal surgeons was enough)
  • But, is possible for the professional opinion to be unreasonable (just very unlikely)
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18
Q

BoD - How does illness/disability affect standard of care imposed?

A
  • When they’re aware of impairment, should act accordingly - failure to do so, may mean they’re negligent
  • If they had no idea before act, SoC adjusted
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19
Q

BoD- What factors are considered when determining if D fell below SoC?

A
  1. Magnitude of risk (likelihood of injury occurring from D actions- more likely more precaution D should’ve taken + more severe potential harm was to be- more care D must take)
  2. Practicality of preventing harm
  3. Benefit of D’s conduct
  4. Common practice (court can rule the common practice itself is negligent)
  5. Common knowledge
  6. ‘state of the art’ defence
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20
Q

BoD SoC - What are the cases for determining the likelihood of harm?

A
  • Cricket ball out of field with fence - happened 6 times in last 30 years - risk too remote
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21
Q

BoD SoC - What are the cases for determining the magnitude of harm?

A
  • employee had one good eye but no goggles provided - risk was small but impact was big therefore DoC held. 🥽👁️🧑‍🦯
  • boxers should be provided with ring-side medical care as risk was brain injury🥊🧑‍⚕️
22
Q

BoD SoC - What are the cases for determining the practicality of precautions?

A
  • slippery factory floor following a flood - 3t of sawdust had been laid down- other measures were not practical 🏭 🌊
23
Q

BoD SoC- How does the ‘state of the art’ defence work under breach?

A

Unforeseeable risks can’t be anticipated so failing to guard against them won’t be negligence.

  • Anaesthetic stored in glass with invisible cracks - staff could not be expected to know of danger. 💉
  • risk highlighted by one academic article not sufficient to alert doctor to the risk.
24
Q

BoD- How does sport work as a factor considered under breach?

A

Nothing short of reckless disregard for C’s safety would constitute a breach
Heat of the moment risks allowed

25
Q

BoD- How does D purpose work as a factor considered under breach?

A
  • D behv in public interest- D less likely liable
  • Human life at stake- justified to take abnormal risk
  • No social utility/unlawful- D req to exercise a very high degree of care to justify even a small risk of harm to others.
26
Q

BoD- How does common knowledge and common practice work as a factor considered under a breach?

A

Common in trade- not liable unless very wrong

Common knowledge- look at what reasonable person would’ve foreseen at that time

27
Q

BoD- How must C prove D breached duty of care?

A

C must prove the breach on the “balance of probabilities.”

28
Q

BoD- What is “Res Ipsa Loquitur” in negligence cases?

A

It allows the court to infer negligence against D when there is no direct evidence, based on the circumstances of the accident.

29
Q

Bod- What are the three conditions for Res Ipsa Loquitur to apply?

A
  1. The thing causing damage must be under D’s control.
  2. The accident would not normally happen without negligence.
  3. The cause of the accident is unknown to C.
30
Q

BoD- What does Section 11 of the Civil Evidence Act 1968 state?

A

If D is convicted of a criminal offence related to the incident, it is presumed in civil proceedings that D committed that offence

31
Q

What 2 things are required to prove causation?

A
  • Factual causation
  • Legal causation
32
Q

What is factual causation and how is it satisfied?

A
  • Establishing link between breach & damage
  • Apply ‘but for’ test: on balance of probabilities, but for D’s breach, would C have suffered their loss at that time, and in that way? If yes = satisfied
  • If multiple causes then use other tests
33
Q

What cases show the ‘but for’ test?
(Both are negative)

A
  • Hospital failed to carry out proper examination but evidence showed that V would have died either way - no causation ⏲️🧑‍⚕️☠️
  • baby went blind any one of causes independently could have caused the blindness, one of the potential 5 causes was negligence. Only 20% chance of negligence therefore no causation.
    👶🎰🦯
34
Q

Where breach is failure to advise on risks, how is the ‘but for’ test satisfied?

A

Where C can prove they wouldn’t have had the treatment or would’ve deferred it had they been told

35
Q

What are the exceptions to the “But for” test?

A
  1. Material Contribution to Harm: Causation can be shown if the defendant materially contributed to the harm, even with multiple causes.
  2. Material Increase in Risk of Harm: If the defendant’s actions increased the risk of harm occurring, causation is established (only in cases of science uncertainty)
  3. Fairness and Justice Approach: Causation may be established based on fairness if C wouldn’t have consented to the risks with known facts.
  4. Multiple Injuries Approach: If C suffers damage and a later D causes further injury, the latter is liable only for worsening the initial damage.
36
Q

What is a divisible injury?

A

A divisible injury can be broken down into separate parts from different defendants, allowing the court to divide liability based on each person’s contribution; the claimant may need to sue multiple defendants for full damages.

37
Q

What is an indivisible injury?

A

An indivisible injury cannot be separated into parts and is treated as a single injury; both defendants are responsible, and the claimant can recover full damages from either defendant without needing to sue all parties.

38
Q

How does the Civil Liability (Contributions) Act 1978 apply to multiple defendants?

A

If multiple defendants are liable for the same damage, the court can apportion blame among them, affecting only the defendants’ liability, not the claimant’s right to recover damages.

39
Q

NIA- How do third-party actions affect the chain of causation?

A
  • Instinctive intervention: Does not break the chain.
  • Negligent intervention: Breaks the chain if the defendant could not foresee it.
  • Reckless/intentional intervention: Does not break the chain if foreseeable.
  • Grossly negligent medical treatment: Breaks the chain.
40
Q

NIA- How do the claimant’s actions affect liability?

A

Unreasonable actions: If entirely unreasonable in circumstances, they can break the chain.

Careless actions: The defendant can raise contributory negligence if the claimant acts
carelessly.

41
Q

How does one prove legal causation?

A

That there NAI that broke chain of causation + damage not too remote

42
Q

NIA- What case shows acts of god?

A

Ship damaged by collision with D and taken for repair. On the way it suffered storm damage. D liable for collision but not storm damage.

43
Q

NIA- What case shows acts of third parties?

A

car crash followed by poor handling of resultant traffic by police resulted in police officer being hurt. Broke chain of causation.

Child not referred by GP resulted in hip injury. Treatment eventually received by hospital was also negligent. Held hospital negligence was not enough to absolve GP’s negligence.

44
Q

What case shows acts of claimants?

A

D caused C’s injured leg. C tried to walk downstairs without a handrail, his leg gave way and he broke his ankle. C’s act was unreasonable so broke the chain of causation.🦵🥴🪜

D caused C’s injured Neck. C tried to walk downstairs with help from son. she couldn’t see, slipped and broke her ankle. C’s act was not unreasonable.🦵😉🪜

45
Q

What is ‘remoteness’

A

D may be the legal and factual cause of C’s loss, but how liable is D for those losses?

46
Q

Does C need to show only that some harm would occur, or do they need to show that the type of harm would occur?

A

Type of harm

47
Q

What cases cover type of harm?

A
  • Oil spill, liable for clean up but not for damage when oil set fire (which was unlikely) 🛢️✅🔥❌
  • C got a disease from rat’s urine. Found rat bites were likely, but not rat’s urine. 🐀✅🫛❌
  • Fan heater in Van didn’t work. Likely that some cold injury would occur therefore, frostbite fell within this sort of injury 🚚🪭🥶✅✅
48
Q

Do you need to see the exact way damage will occur for remoteness?

A

No

oil lams left around a hole. Child dropped lamp into hole causing an explosion and burns. Burns were likely even if exact cause was not.

49
Q

Do you need to foresee the extent of the damage for remoteness?

A

No, once the damage is reasonably forseable, D is liable for full extent of damage.

  • Small explosion was foreseeable but not the huge one that happened.🔥💥
  • D Burnt C’s skin provoking onset of pre-existing cancer. Once burn foreseeable they’re liable to everything that follows (thin skull rule).
    🔥🩹☠️
50
Q

What is the primary focus of remoteness in negligence claims?

A

Remoteness focuses on whether the type of damage caused is a foreseeable consequence of the defendant’s breach of duty.

51
Q

How does remoteness limit a defendant’s liability?

A

Remoteness limits a defendant’s liability by ensuring they are only responsible for damages that are a foreseeable result of their actions, thus excluding unusual or unexpected damages.

52
Q

What are the three key rules of remoteness in negligence?

A

1) Wagon Mound Rule: The type of harm must be reasonably foreseeable at the time of the breach.

2) Similar in Type Rule: A defendant is liable even if the exact manner or extent of the injury was not anticipated, as long as the type is foreseeable.

3) Egg-shell Skull Rule: The defendant is fully liable for the claimant’s injury, taking the victim as they find them, regardless of foreseeability of severity.

SQE 1 FLK 1 (B.K) (16 decks)

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