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Contract > Tort > Flashcards

Tort Flashcards

1
Q

Difference between contract and tort?

A
  • In contract, duty is to a known person.
  • Purpose of damages is different.
  • Limitation periods.
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2
Q

Can be concurrent liability (Tort/Contract)?

A

Yes

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3
Q

Difference between criminal and tort?

A
  • Tortious liability is governed by civil procedure in civil courts; crimes by criminal procedure in criminal courts.
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4
Q

Elements of Negligence

A
  1. Duty of care.
  2. Breach of duty.
  3. Damage
  4. Causation.
  5. Remoteness.
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5
Q

Established categories:
Duty Doctor - Patient?

A

Bolam

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6
Q

Established categories:
Employer - Employee?

A

Wilsons and Clyde Coal Co

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7
Q

Established categories:
Road users?

A

Nettleship v Weston

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8
Q

Neighbour principle

A

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

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9
Q

Donoghue v Stevenson

A

HL Held: Manufacturer could be liable in negligence to the ultimate consumer as a result of the defective condition.

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10
Q

Who is my neighbour?

A

A person who are so closely and directly affected by my acts.

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11
Q

Two stage test Lord Wilberforce

A

Anns v Merton:

1) Is there a sufficient relationship of proximity or neighbourhood?
2) Are there any considerations which should lead the court to deny a duty of care, or to limit its scope?

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12
Q

Test for Novel Situations

A

Caparo v Dickman test:
1) Was the damage caused reasonably foreseeable?
2) was there a relationship of proximity between the claimant and defendant?
3) Is it fair, just and reasonable to impose that duty?

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13
Q

1) Reasonable foreseeability

A

The reasonable man would foresee that the claimant would suffer damage as a result of the defendant’s action.
“Haley v London Electricity”
- Claimant was blind and tripped over a hammer which had been placed on the pavement before a hole.
HELD: It was reasonably foreseeable that a blind mand would be injured by the defendant’s action.

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14
Q

2) Proximity

A

Legal proximity, no necessary physical proximity.
“Caparo v Dickman”
- Investors (Caparo) relied on an auditor (Dickman).
- Audit found to have false information.
- Caparo sued for loss as a result of Dickmans negligence.
HELD: No relationship of proximity between the parties.

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15
Q

3) Fair, just and reasonable

A

Policy test
“McFarlane v Tayside Health Board”
- Woman pregnant after her husband had had vasectomy.
- Woman sued for difficulties during the pregnancy and cost of raising the children.
HELD: Doctor may have a duty or care regarding the vasectomy but not a duty to raise a child-

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16
Q

Current approach

A

“Robinson v Chief Constable of West Yorkshire”

  • Police held to have a duty of care to the claimant who was injured while the police effected an arrest.
  • OUTCOME: The existence of a duty of care in novel situations does not depend always on the application of “Caparo Test”.
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17
Q

General Rule omissions

A

There is a marked reluctance to impose liability for omissions.

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18
Q

Reasons for not impossing liability for omissions.

A
  1. It is an invasion of a personal freedom.
  2. It is difficult to identify the individual
  3. It is not an efficient allocation of resources to require a person who is not doing anything to spend money on behalf of someone else.
19
Q

Exceptions for omissions

A
  1. Assumption of responsability “Barrett v Ministry of Defence” Drunk naval air man.
  2. Claimant under the care of control of the defendant “Reeves v Commissioner of Police for the Metropolis” Suicided Police officer.
  3. Creating danger. “Capital and counties plc” Fire brigade has no duty to persons whose property is on fire.
20
Q

Breach of duty authority

A

Blyth v Birmingham Waterworks

21
Q

Blyth v Birmingham Waterworks test

A
  • Claiman property was flooded when a water main laid by the defendant burst as a result. HELD: Defendant not liable since it was not reasonable to expect him to guard against the risk of such severe weather.

Two stage test:
1) What are the qualities of the reasonable person? (Question of law)
2) How much care did the defendant take? Did this fall bellow the standard of the reasonable person? (Question of fact).

22
Q

Case related to reasonable man

A

Glasgow Corp v Muir
“Reasonable man of ordinary intelligence and experience.

23
Q

Dunnage v Randall

A

Objective test applies regardless of physical or mental capabilities.

24
Q

Exception to Dunnage v Randall

A

Mansfield v Weetabix

  • Driver of a lorry unaware he suffered hypoglycaemia.
  • Driver lost control and injured the claimant.
    HELD: Driver (defendant) not in breach of duty. Hw has unaware of his medical condition.
25
Q

Established case for Road User.

A

Nettleship v Weston
- Claiman gave car lessons to defendant - Defendant caused injury to the claimant.
HELD: Liable as the standard to be expected was that of the reasonably competent and experienced driver even though she was a learner.

26
Q

Exceptions for Nettleship v Weston

A

“Mullins v Richards” and “Orchard and Lee”: Standard of care different in children

27
Q

Relevant factors - Breach of duty

A
  1. Magnitude of the risk: a) Likelihood that injury will occur; b) seriousness of the injury risked.
  2. Importance of the defendant’s objective: If the defendant is under some compulsion, legal or moral in an emergency, he might be expected to be careless than otherwise.
  3. Social Action, Responsability and Heroims Act 2015.
28
Q

Special cases - 1) Special or Professional Skills

A

“Bolam” - Duty Dr - Patient.
- Defendant broke his pelvis whilst undergoing electro-convulsive therapy.
HELD: Dr. no liable. He had acted in accordance with practice accepted as proper by a “responsible body of medical man and skill”.

“Bolitho” -No breach if Dr. can prove that the procedure has a logical basis and reason.

“Wilsher v Essex” - Junior doctor held to the standard of a qualified doctor.

29
Q

Special cases - 2) Alternative Medicine

A

“Kauser Shakoor” Herbalist will be held to the standard of a reasonable herbalist practicing in the same sphere as the defendant.

30
Q

Special cases - 3) Medical consent

A

“Chester v Afshar”
Patient has the right to be informed of a small but well established risk of serious injury as a result of surgery. If not Dr. falls below the standard or care.

31
Q

Proof of Breach

A

Burden of proof is on the claimant. Evidence being assessed under the standard of proof, on the so called “balance of probabilities”.

32
Q

Rep ipsa Loquitur

A

Let the action/thing speaks for itself. Applies when claimant cannot point exactly the person to blame for his injury.

“Scott v London” - Bags of sugar fell from a hoist onto the claimant.

Three questions:
1) Does the defendant have a right to control the thing that caused the damage?
2) Accident should be something which could not, in the normal course of events, have happened without negligence.
3) There are no explanation from the facts.

33
Q

Causation

A
  1. Factual Causation.
  2. Legal Causation.
34
Q

Factual Causation

A

“Cork v Kirby Maclean limited”
“But for test”
But for the negligence or the defendant would the claimant have suffered damage?

35
Q

Examples but for test

A

“Barnett v Chelsea and Kensington Hospital”.
- Patient attend to the Dr. with pain.
- Dr. sent her home.
- Patient died, because arsenic.
HELD: But for test not satisfied. She had died anyway.

36
Q

Difficulties with “but for test”

A

Multiple causes
1. Cumulative causes.
2. Concurrent causes.
3. Separate discrete causes.
4. Multiple tortfeasors.
5. Successive/consecutive causes
6. Preexisting conditions.
7. Consent.

37
Q
  1. Cumulative causes
A

“Bonington Casting Ltd”
- Claimant contracted lung disease at work.
- However C could not prove but for test.
HELD: Claimant had to prove that Defendant’s negligence depicted a material contribution to his injury

“McGhee v National Coal Board”
- Claimant contracted dermatitis at work.
- However C could not show on the balance of probabilities that the breach of duty by his employer had caused his injury.
HELD: Claimant needed to show that Defendant MATERIALLY INCREASED THE RISK OF INJURY.

38
Q
  1. Concurrent causes
A

Several concurrent causes all taking place at the same time.

“Fitzgerald v Lane”
- Claimant was hit by several cars while crossing a street in green light.
HELD: All parties liable including the claimant

39
Q
  1. Separate discrete causes
A

A number of separate discrete causes of which could have been sufficient to cause the damage but it is not possible to determine the operative cause.

“Wilsher v Essex”
- Claimant was given an excess of oxygen following his premature birth which caused him blindness.
- However other possible causes.
HELD: Defendant’s liable following McGhee (Claimant had to prove that Defendant’s negligence MATERIALLY INCREASED THE RISK ON THE BALANCE OF PROBABILITIES)

“Bailey v Ministry of Defence”
- Claimant suffering from 2 causes: 2) Pancreatitis; and 2) negligent post-operative care.
HELD: Liability for the post-operative care. HOWEVER: when medial science cannot establish the probability that “but for” an act of negligence the injury would not have happened, but can establish that the contribution of the negligence was more than negligible. Claimant success.

40
Q

Multiple Tortfeasors

A

Asbestos cases.

“Fair Child v Glenhaven”
- All employers liable, however claimant still have to prove.

HOWEVER: s.3 Compensation Act 2006
- When conditions of “Fair Child v Glenhave” are met, any or all the defendants employers can be liable for the whole damage

“Sienkiewicz v Grief”
- Employer is just liable if his act MATERIALLY INCREASED THE RISK at least the minimum.

HOWEVER:

Loss of chance: “Hotson v East Berkshire Health Authority”
- Claimant need to show at least the 51% chance that the injury was caused by Defendant’s negligence.

“Gregg v Scott”
- Confirmes Hotson.
- 51% chance on the balance of probabilities

41
Q

Successive/ consecutive causes

A

“Baker v Willoughby”
- Defendant negligently injured Claimant’s leg. However, claimant was after shot by another.
HELD: Second tort did not relieve the first tortfeasor of liability

“Jobling v Associated”
- Cliamant had back problems due to defendant’s negligence.
- However it was discovered that C had a previous disease.
HELD: Defendant not liable.

42
Q

Pre-existing conditions

A

If the damage is attributable to a pre-existing condition rather than negligence, defendant not liable.

“Performance Cars”
- Luxury car damaged by D1.
- After Car slightly damaged by D2.
HELED: D2 not liable since his act did not increase the damage.

43
Q

Consent

A

“Chester v Afshar”
- Breach of duty by Doctor who did not inform with detail risks to patient.
- However, claimant could not prove that if she had known the risk she would have decline the operation.
HELD: Claimant not succeed. But for note satisfied.

Contract (4 decks)

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