Tort Flashcards
What is the sequence to determine whether a duty of care is owed?
What are the common duty of care precedents outlined in the materials?
Road users to other road users
Medical professionals to patients once accepted for treatment
Rescuers of somebody who did something stupid, and would know somebody would attempt to rescue them
Police from reasonable physical injury when carrying out an arrest
When is there duty of care for omissions?
statutory (occupiers liabilty)
contractual
sufficient control over claimant (parents, prisoners)
assumes responsibility (employment, teacher/pupil)
defendant creates the risk
Summarise the duty of care owed by emergency services
Ambulance: must respond to 999 within a reasonable time (no breach if triaged)
Fire: no duty to attend, but duty not to make worse if they do attend
Police: no duty to respond to calls, but they owe other duties (e.g., on arrest, when in custody)
What is the general rule in tort for failing to prevent a third party from causing harm to another?
No duty of care
In what 4 circumstances is there likely to be a duty of care for failing to prevent a third party from coming to harm?
Proximity between D/C
Proximity between D/third party
Defendant created danger
Risk was on D’s premises
Summarise the major caselaw principles for duty of care to third parties for sufficient proximity between D/C?
Sufficient proximity is when the claimant is an identifiable victim at risk over and beyond the public at large and the defendant has assumed responsibility for the claimants safety
Summarise the major case law principles for when there will be sufficient proximity between d/3rd party?
Where at the time of the harm committed, the 3rd party was under the care/control of defendant
E.G., supervisors, police custody, hospital custody
What is the key caselaw principle when establishing duty of care to 3rd parties when it is on D’s premises
They have to have known about the danger on their premises
What are the 3 key distinguishing factors when considering whether public bodies have a duty of care?
No duty of care is imposed if incompatible with the intentions of the statutory scheme
No DOC in relation to an omission to exercise powers granted to them
Statutory schemes may well expect resource allocation/policy matters would not give rise to a DOC
What 3 case examples were given for DOC for public bodies?
No duty to take children into state care
Policy considerations – floodgates
Operational errors (liable) vs policy errors (not liable)
What is the starting point for public body liability?
Same as for individuals
What are the 2 stages to determining breach of duty?
Standard of care
Did they fall below
What is the general rule for standard of care?
Reasonable person test (objective)
What is the standard set by?
Act not actor
What is the professional standard?
Reasonable professional in that field
Is there a lower standard for junior professionals?
No
What is the standard for children?
Reasonable standard for a child of their age
What adjustments to the standard can be made for disability
Circumstances which the defendant was reasonably unaware of
What is the Bolam test?
[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
What facts and circumstances are considered to determine whether standard of care was breached?
Likelihood of harm
Magnitude of harm
Practicality of precautions
Benefit of defendant conduct
Common practice
State of art at time of breach
Special rules for sport
To what degree must the breach be proven?
Balance of probabilities
Who has the burden to prove breach of DOC??
Claimant
What does the maxim res ipsa loquitur mean?
Facts speak for themselves
The ONLY plausible explanation for the claimants injuries is negligence