TORT Flashcards
Under Caparo, when is a DOC owed?
DOC owed where:
1. Foreseeability of Harm
2. Relationship of Proximity between C and D
3. Fair, Just + Reasonable to impose duty (social/political/economic impact - society)
What is the decision tree for duty?
Is there a precedent making clear whether or not a DOC is owed?
Yes -> Apply the precedent.
No -> Next Q.
Consider whether a duty should be imposed by analogy with existing cases within the context of the Caparo criteria meaning:
—- HARM suffered (e.g. PI) must have been
reasonably foreseeable
—- Relationship of PROXIMITY between C and D
—- FAIR, JUST + REASONABLE to impose duty.
must bear in mind that aim is to only develop law of negligence incrementally.
General rule re Omissions - and the FIVE exceptions?
⭐ No liability for omissions except (5):
Statutory Tory e.g. occupier’s liability
Contractual Duty e.g. decorator owed duty to lock house properly
Sufficient Control e.g. parent-child drowning, police-suicidal suspect in custody
Assumed Responsibility e.g. started to help drunk C, left them, C choked on vomit, duty owed
Creates Risk Through Omission, e.g. natural fire, didn’t fully put out, had the ability, the duty owed
What are the duties of the emergency services (Ambulance service, Fire Brigade, Police)?
🚑 Ambulance Service - ✅ duty to respond to 999 call in reasonable time. Although may not breach if exercising discretion to deal with more pressing calls.
🚒 Fire Brigade - ❌ no duty to attend fire, once there though duty not to make it worse through act
🚓 Police - ❌ no duty to respond to emergency calls
General rule re liability for Acts of TPs (and the FOUR exceptions)?
⭐ No liability for acts of TP
except (4):
ONE: There is sufficient proximity (special relationship) between D and C; and/or
✅ - contractual duty, identifiable victims at particular risk above public, assumed responsibility for identifiable police informant
❌ no duty between TP and unidentifiable member of large group (murderer) - having power to do something does not mean duty to do it if not assumed responsibility.
TWO: There is sufficient proximity (special relationship) between D and TP; and/or
✅ - supervisory relationship
❌ TP murderer not under police care/control at time of murder, released psychiatric patient not under authority’s care and control at relevant time.
THREE: D created danger; and/or
✅ - failing to secure building allowing burglary
FOUR: Risk was on D’s premises; and/or
Exception Categories?
Exception categories:
- A has assumed responsibility to protect B
- A done something which prevents another from protecting B from danger
- A has special level of control over source of danger
- A’s status created obligation to protect B from danger.
General rule re Public Bodies?
⭐ Same principles apply as for private individuals except:
Where ordinary principles suggest DOC but this would be incompatible with intention of stat scheme
Simply because public body has power to act, does not mean omission => duty of case arises.
❌ No duty owed by authority who didn’t take 2 children into care despite power to
What are the TWO parts of BREACH?
- Standard of Care (matter of law)
- Whether fallen below standard (matter of fact)
What is STANDARD OF CARE?
⭐ ‘reasonable person’ test (objective)
– act not actor e.g. learner 🚗 or junior 🧑⚕️ held to standard of passed/qualified.
Higher - Professional standard (💼 Bolam) - objective - reasonable person w special skill
Lower =
– (1) Children - reasonable child of D’s age
❌ ruler - eye injury - x foreseen
– (2) Illness/Disability - if unaware
✅ - aware, didn’t stop
❌- unaware ability impaired
What factors are relevant to the question of whether person has fallen below standard of care?
Factors
1. Small risk 🏏❌, risk particularly affecting blind ✅
2. Small risk, but injury would be significant (blind) ✅
3. Small risk, and precautions needed x justified ❌
4. Where life at stake (🧑🚒) abnormal risks ok ❌ - consider benefit of D’s conduct ->
Note 🧠: 📖 s3 Compensation Act 2001
Social Action, Resp + Heroism Act 2015
5. Acting in accordance w practice ❌ unless standard practice itself = negligence ✅.
6. Assess D’s act v knowledge in profession @ time of breach 📅 not at court hearing.
7. Sport - about reasonable participant of D’s level, may take risks ibn heat of moment.
What is the BURDEN OF PROOF re breach?
On C - prove breach - on balance of probabilities
📖 s11 Civil Evidence Act 1968 - C can rely on any conviction for D for incident that caused C’s injury if conviction = evidence of careless conduct (e.g. dangerous driving).
Res Ipsa Loquitur - where only plausible explanation = D’s negligence, + cannot prove exactly how, if:
— 1. Thing causing damage = under D’s control/someone D responsible for’s control
— 2. Accident would x normally happen without negligence
— 3. Cause of accident unknown to C.
