Tort Flashcards
3 Important Characteristics in the Rules of Conduct of Tort
- Describes a standard of behaviour that everyone should observe
- they provide compensation to the victim
- they ensure retribution against the wrongdoer
Negligence
“the failure to take reasonable care where a duty to do so exists, and where breach of that duty causes a reasonably foreseeable recoverable loss or damage to the person who the duty is owed”
- BLYTH V BIRMINGHAM WATERWORKS CO 1856
Elements of Negligence
- DUTY OF CARE
- BREACH OF DUTY
- LOSS OR DAMAGE
- CAUSATION OF LOSS OR DAMAGE
- FORESEEABILITY OF LOSS OR DAMAGE
DONOGHUE V STEVENSON;
5 CRITICAL ELEMENTS
- LACK OF CONTRACT SHOULD NOT PREVENT THE CLAIMANT FROM CLAIMING
- NEGLIGENCE WAS ACCEPTED AS A SEPARATE TORT IN ITS OWN RIGHT
- NEGLIGENCE WOULD NEED TO SATISFY A 3 STAGE TEST - DUTY, BREACH & DAMAGE
- ‘NEIGHBOUR PRINCIPLE’
- MANUFACTURERS WOULD OWE A DUTY OF CARE TO CONSUMERS NOT TO CAUSE HARM
1)REASONABLY FORESEEABLE
WHETHER A REASONABLE PERSON IN THE DEFENDANTS POSITION WOULD REASONABLY HAVE FORESEEN THAT THE CLAIMANT WOULD BE HARMED
- Kent v Griffiths 2000; asthma attack & late ambulance
2) PROXIMITY
MEANS NOT JUST PHYSICAL CLOSENESS, BUT ANY FORM OF RELATIONSHIP BETWEEN THE PARTIES
- bourhill v young 1943, suffered nervous shock and delivered a still born child, did not see the crash
3) FAIR, JUST AND REASONABLE
EVEN WHERE DAMAGE MAY BE FORESEEABLE AND THERE IS PROXIMITY BETWEEN THE PARTIES, THE COURTS MAY NOT IMPOSE A DUTY IF IT WOULD NOT BE FAIR, JUST AND REASONABLE.
- osman v united kingdom 1999, husband killed and child injured by a teacher who showed interest in the child was dismissed
held police owe no duty of care
RESCUERS
OWE A DUTY OF CARE TO RESCUER, PROVIDED A REASONABLE PERSON IN THAT SITUATION WOULD FEEL OBLIGED TO HELP
- ward v t e hopkins and son ltd 1959, doctor killed trying to save 2 workmen from fume filled well
FACTORS THAT SHOULD BE CONSIDERED;
- HAS THE CLAIMANT GOT ANY SPECIAL CHARACTERISTICS THAT SHOULD BE TAKEN INTO ACCOUNT?
- WHAT IS THE RISK?
- HAVE ALL APPROPRIATE PRECAUTIONS BEEN TAKEN?
- WERE THE RISKS KNOWN?
- IS THERE A PUBLIC BENEFIT TO TAKING THE RISK?
SPECIAL CHARACTERISTICS
If something about the claimant makes them more likely to be harmed then the standard of care is higher
- paris v stepney borough council 1951, blind in one eye, not given goggles, went blind in second eye
duty of care was breached
MAGNITUDE OF RISK
greater the risk, the greater the duty of care
-Hayley v London Electric Board 1965
dug a trench, put out warning signs
road was used by many blind people and claimant got injured
WERE ALL APPROPRIATE PRECAUTIONS TAKEN?
Latimer v AEC ltd 1953
- factory flooded w/ mixture of oil and water & wS evacuated
- sawdust put down and workers sent back in
- no breach bc all right precautions were taken
WERE THE RISKS KNOWN?
IF RISK IS UNKNOWN THERE IS NO BREACH
- Roe v Minister of health 1959
anaesthetic kept in glass tubes, invisible cracks were unknown
got contaminated by cleaning solution & paralysed claimant
WAS THERE A PUBLIC BENEFIT?
WATT V HERTFORDSHIRE COUNTY COUNCIL
- claimant was a fire fighter who got injured by an unsecured jack as the correct truck was unavailable
- no breach bc of the emergency situation
PRINCIPLE FROM BOLAMS CASE
- DOES THE DEFENDANTS CONDUCT FALL BELOW THE STANDARD OF THE ORDINARY, COMPETENT MEMBER OF THE PROFESSION?
- HAS THERE A SUBSTANTIAL BODY OF OPINION WITHIN THE PROFESSION THAT WOULD SUPPORT THE COURSE OF ACTION TAKEN BY THE DEFENDANT?
