tort Flashcards
what case over ruled the neighbour principle
donoghue v stevenson was overruled by caparo v dickman
what is the neighbour princple
is who you owe a duty of care to through your acts or omissions ( could be anyone )
what is the 3 part test of caparo v dickman
1) is the damage reasonbly foreseeable
2) is there a proximate relationship between the d and c
3) is it fair just and reasonable to impose a duty
what is meant by “was the harm reasonable foreseeable”
where the reasonable person could see and damage or potential harm occuring
Kent v Griffiths( ambulance did not arrive in time)
what is the proximate relationship
(like the neighbour principle) who u owe a duty to based on ur acts or omissions
Bourhill v Young (stillborn baby)
what facts happened in Mcloughlin v O’brien
in the case of bourhill v young she wasnt allowed to claim as it would open flood gates. but mcloughlin doesnt open flood gates as it was proxite relationship and within a reasonable time
Fair just and reasonable to impose a duty
Hill v chief constable of west yorkshire (jack the ripper)
what happens after the claimant proves that a duty of care is owed
they need to prove that there has been a breach in the duty
A professional has only breached the duty of care when?
1)does the d conduct fall below the standard ordinary person of that profession?
2)is there a body of opinions that would
support what the d did
Learners can breach the duty of care
nettleship v weston
children
have to consider there age
mullin v richards
there are risk factors
if the standard of care should be raised or lowered
special characteristics
paris v stepney borough council
blind in both eyes
size of risk
if the risk size is small =no breach of duty
bolton v stone
appropriate precautions
will look at the caution and see if you could eliminate or reduce that caution
latimer (flooding )
unknown risk
if the risk is unknown there is no breach
roe v minister of health (anaesthetic caused paralysis)
public benefit
duty of care has not been breached in emergency
watt v hertfordshire
how to prove causation
if factual causation cant be prove then u dont even need to consider legal
Barnett
intervening events
was the injury or damage reasonably forseeable consequence of the orginal neglient act or omission
the test of legal causation
the injury or damagw must be reasonable foreseeable
the type of injure for causation
it needs to be foreseeable eg in the case of hughes v lord advocate (boy explored hole and parffin lamp burned him)
eggshell skull
take ur victim as you find them
smith v leech brain(cancer came back)
what is res ipsa loquitur
it is when the c cant prove the injury as they may have been unconscious so there are ways they can prove it
what must the c show to prove res ipsa loquitur
d was in controll of situation
accident would have not happened if there was no negligence
no other explanation for injury
res ipsa loquitur case
scott v london + katherine docks
defences ( contributary negligence)
where the c is partly to blame for the injury or damage
the case for contributory negligence is
sayers v harlow urban district
and
froom v butcher
how to prove consent
1) knowlege of precise risk involved
2) have a free choice
3) acceptance of risk
pencuniary loss
a money loss
non -pecuniary loss
pain or suffering
or change of lifestyle
what is psychiatric injury
a result of negligence.
a sevre long term mental injury that is more than shock or gried (heize v berry)
a primary victim
must be in the zone of danger
involved in the injury
secondary victim
involved in immediate aftermath
primary victim case + what it establishes
Page v Smith
only physical injury needs to be reasonably foreseeable
Why are secondary victim harder to claim for
As it could open floodgates and it is controlled by Alcocks criteria
3 steps to prove a secondary victim
1) close ties of love and affection
2) c suffers mental shock at the scene(Mcloughlin v O’brien)
3) shock through unaided senses
What 3 steps does a rescuer need to do
1)be involved
2)fear their safety
chadwick v brittish rail
by standers
not in zone of danger , dont help
mcfarlane v ee caledonia
near missers
nearly involved in danger ( could be a primary victim)
what is consequential damage
damage directly from the accident or neglience
what is pure economic loss
damage that is not a result of physical injury or damage to property
neglient mistakement
the only time c can claim for pure economic loss , when suffering a financial loss as a result on acting on a neglient mistakement
neglient mistakement
overided duty of care
Hedley Byrne v Heller and Partners
How to prove special relationship
1)possesion of skill or expertise
2)c must rely on the d words
3)advices is communicated directly
4)d knows they are giving advice for a reason
5)no disclaimer to act as a defence

