Tort Flashcards
What precedent DOC do drivers owe?
-DOC to other road users not to cause them physical injury by careless driving
-DOC to pedestrians
What precedent DOC do police owe?
-Public: protect from reasonably foreseeable physical injury when carrying out an arrest
-Prevent someone in their custody causing harm to themselves
-Protect C against criminal C gives evidence about
What DOC do ambulance owe?
Respond to a 999 call within a reasonable time
What are the Caparo criteria?
(a) Foreseeability of damage/harm: reasonably foreseeable that D’s lack of care would cause C harm
(b) Proximity: relationship between C and D must be sufficiently close
(c) FJR to impose a duty (of a given scope on one party for the benefit of the other) in light of relevant policy considerations
What are relevant policy considerations in Caparo?
-Floodgates
-Insurance
-Crushing liability
-Deterrent
-Maintenance of high standards
-Defensive practices
-Impact on taxpayer (for public bodies)
-Public body can be held liable for operational matters, not policy matters
What are the 6 exceptions to the general rule that there is no duty on a mere failure to act (i.e., omission)?
(1) Statutory duty (e.g., OLA 1957)
(2) Contractual duty
(3) D has sufficient control over C
(4) D assumes responsibility for C
(5) D creates the risk through an omission
(6) Emergency services
What is required for D to create a risk through an omission?
(1) Know / ought to have known of the danger; and
(2) Failed to take reasonable steps to mitigate the danger
What are the 4 exceptions to the general rule that there is no duty on a failure to prevent a 3rd party causing harm to another?
(1) Sufficient proximity (special relationship) between D and C
(2) Sufficient proximity (special relationship) between D and 3rd party
(3) D created the danger
(4) Risk was on D’s premises
What are the requirements for the ‘sufficient proximity between D and C’ exception regarding 3rd parties
(i) C is an identifiable V at risk over and above the public at large; and
(ii) D has assumed responsibility, through their words/conduct, for C’s safety
What is the (objective) standard when considering a breach? (Normal + professional)
-D must behave as a reasonable person would in all the circumstances. What would the reasonable person have considered in the circumstances which D faced
-Professional: standard of the ordinary reasonable man exercising and professing to have that special skill
What are the 4 exceptions to the general rule re standard of care?
(1) Children: reasonable and careful child of D’s age carrying out the act
(2) Illness and disability
(3) Engaging in sport
(4) Acting in emergency
How does illness/disability affect standard of care?
-Aware of prior condition –> not good enough
-Unaware of prior condition –> judge against a reasonably competent driver who is unaware that he is suffering a condition that impairs ability to drive
How does engaging in sport affect standard of care?
-In sport, likely to take risks in heat of moment –> need reckless disregard for breach
-Depends on level of sport
-Would reasonable participant of D’s level have known that there was a significant risk that what they did could result in serious injury?
What are the 3 elements required for res ipsa loquitur (the facts speak for themselves)?
(1) The thing causing the damage was under control of D or someone they are responsible for;
(2) Accident would not normally happen without negligence; and
(3) Cause of accident is unknown to C (i.e., C has no direct evidence of D’s failure to take care)
What 6 factors need to be considered when deciding whether D has fallen below standard of care (non-medical cases)?
(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 defence
Benefit of D’s conduct: when may risk taking be justified?
Aim of preserving/protecting life, limb or property
Benefit of D’s conduct: what does the court consider in terms of SARHA?
Whether:
(a) The person was acting for the benefit of (members of) society
(b) The person demonstrated a predominantly responsible approach towards protecting others’ safety/interest
(c) The alleged breach occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger
Common practice: what needs to be considered?
-Did D act in accordance with a practice usually followed by others in that field?
-Less weight given where there is less expertise/specialist knowledge involved in an area
-Ignore illogical common practices
What are the two limbs required for breach of professional cases?
Limb 1: has D acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art?
Limb 2: does the body of opinion have a logical basis (is it reasonable/ responsible)?
Bolam tested: what is meant by a responsible body?
Does not have to represent the majority of opinion, merely an acceptable one
How do we assess alternative/ variant treatments?
Use Bolam/Bolitho: obligation to take reasonable care to advise patients of any reasonable alternative/ variant treatments
(Note: treated differently to breach for failure to warn of risk of medical procedures)
What is required for Bolitho?
-Logical basis
-Experts had directed their minds to the question and reached a logically sensible conclusion
What is required for the state of the art defence?
-Doctors must do what is reasonable to keep up to date with new developments by going on professional development courses
-Doctors must keep up to date with changes recognised in mainstream literature and follow common practice, although they don’t necessarily need to be aware of content of more obscure journals
What is the test for material risk in the context of professional negligence?
(i) A reasonable person in the patient’s position would be likely to attach significance to (objectively); or
(ii) The doctor is or should be reasonably aware that the particular patient would be likely to attach significance to (subjectively)