Tort Christmas Exam review Flashcards
What is the primary distinction between a primary and secondary victim?
direct involvment with the event in question
explanation: A primary victim is someone who has been directly involved in an accident, whereas a secondary victim is someone who has witnessed the distressing events but has not been directly involved.
What are the areas of limited duty?
Omissions
Mental injury
explanation
omissions: english law does not recognise liability for pure omissions
mental injury: there is no libality for pure shock or grief, must be a recnognised phyciatric condition. Proximity and policy considerations still remain
liability for mental injury
what is the criteria and what case does it come from?
- Foreseeability of psychiatric harm;
- close tie of love and affection with the person endangered;
- Proximity to the incident or immediate aftermath; and
- The psychiatric injury must be caused by a shocking event.
- Must see or hear the incident, or immediate aftermath.
Alcock v cheif constable
note: liability for mental injury has a huge amount of case law and as such can also be analysied on a case-by-case basis
can you be liable for omissions?
no liability for pure omissions but Subject to the exceptions of duties of affirmative action
what are the elements of a successful claim for mental injury?
passes the criteria of alcock
What are the circumstances that means you DONT have a DOC?
You don’t have a DOC to perform a positive action (unless if falls under the affirmative actoins).
What will the court rule/consider when considering sudden shock?
i.e why is sudden shock an important consideration?
- Primary victims do not have to establish that their aprecaiont of the event was through sudden shock, secondary victims do
- shock is the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind.
- BASED ON FORESEEABILITY and other alcock criteria
e.g. there can be no claim for depression caused by looking after a victim injured by someone else’s negligence.
When can a rescuer claim to be a primary victim?
they have to fall within the normal rules of primary vs secondary victims
Which case(s) give us the current tests for establishing DOC?
Robinson
Caparo (only for new relationships of DOC).
What case gives us the criteria for secondary victims, and what are those criteria?
Alcock v Chief constable
- A close tie of love and affection to a primary victim
- Appreciation of the event with their own unaided senses
- Proximity to the event or its immediate aftermath
- The psychiatric harm must be caused by a sufficiently shocking event.
do the police owe a DOC?
what is the case authority?
No. only if acting as private individuals. (Tindall), ancell v McDermont, Michael v Cheif constable
what is the interference principle?
what case does it come from?
the duty of care not to make matters worse by acting in a way that creates an unreasonable and reasonably foreseeable risk of physical injury to the claimant.
Tindall
do ambulances have a DOC?
what is the case authority?
kent v griffiths
Yes they do
do the fire service have a DOC?
what is the case authority?
no duty of care owed by fire services
capital counties v hants Cc 1997
what are the affirmative actions that make you liable for an omission?
- creating a situation of danger
- Dangers on ones land
- assumption of responsabililty
- duty to control a third party
what is customary phlegm?
When considering whether an injury was reasonably foreseeable, would a person of normal fortitude (customary phlegm) suffer psychiatric injury?
What are the two sub issues when considering standard of care?
- standard of care
- breach of standard
how do we work out if the standard of care has been breached?
- multi factor analusis for normal cases
- for special cases: multi-factor analysis + professional tests (e.g. bolam or montgomery test)
what consitutes a special case when considering standard of care?
professional standards (e.g. doctors)
different enviornment (sports)
age (children held to a different standard)
what is the ordinary standard of care?
care depends not on your characteristics, but on what the law expects generally of people in the situation at hand. (reasonable person).
who is the reasonable person?
- Objective
- Hypothetical – not ‘average’ person or ‘most’ people
- minimum standard
- Reasonable person might have many options
what are the four components of a multi-factor analysis?
bonus points for naming the cases attached to each factor
- Foreseeable likelihood of harm occurring * E.g. Bolton v Stone (1951); Hilder v Associated Portland Cement (1961)
- Foreseeable magnitude of the harm (if it occurs) * E.g. Paris v Stepney BC (1951)
- Cost of precautions * E.g. Latimer v AEC (1953); The Wagon Mound (No 2) (1967)
- Social utility * Daborn v Bath Tramways Motor Co (1946); Tomlinson v Congleton BC (2003) * Sec. 1, Compensation Act 2006 + Social Action, Responsibility and Heroism Act 2015
which case gives us the principle of SOC for leaner drivers and what is that standard?
Nettleship
learner drivers held to the same standard as any reasonable competent driver
which case tells us about the duty to inform? What is that test caled?
Montgomery, Montgomery test
what is the bolam test?
if a practice was in agreement with a responsible body of other medical professionals, then it cannot be a breach of standard of care.
what is the bolithio test?
how has it modified or interacted with the bolam test?
The House of Lords clarified the Bolam test to include a provison that the practice accepted as proper by a responsible body of professionals must be based on logical and defensible grounds.
How does A honore describe causation
“to insist on causal connection between conduct and harm ensures that in general we impose liability only on those who, by intervening in the world, have changed the course of events for the worse.”
BFT and its key cases?
Can it be said that if D had not acted, C’s loss would not have occurred? I.e would the claimants loss still have happened even without the defendant’s conduct?
Barnett v Chelsea and Kensington Hospital, McWilliams v Sir William Arrol Ltd.
all or nothing approach
Apply the BFT
C must show on the balance of probabilities that it was the defendant’s breach that caused the loss. (It’s all or nothing because a probability of greater than 50% is treated as a certainty).
what is material contribution to injury and WHEN can this test be used (what type of injury/case)?
- A forensic device for analysing indivisible injuries.
- Under this principle, the defendant is held liable for having part-caused the claimants’ injury.
What is the principle of the Loss of Chance of recovering from physical injury
If on the balance of probabilities C was going to suffer physical consequences regardless of the actions of the defendants then the only existing claim could be for loss of chance, which then comes down to the statistical analysis of the courts.
what does chester v Afshar tell us?
a Doctor who doesn’t warn a patient about a complication from treatment must compensate the patient for the consequences of that complication materialising.
what is the balance of probabilities?
“The law operates a binary system in which the only values are 0 and 1. If the evidence that something happened satisfies the burden of proof…then it is assigned a value of 1 and treated as definitely having happened. If the evidence does not discharge the burden of proof, the event is assigned a value of 0 and treated as definitely not having happened. There is no forensic space for the conclusion that something which has to be proved may have happened.”
What are the principles of the performance cars v Abraham case?
This case gives us the Orthodox rule: Where the damage is divisible, the defendant will only be liable for the part they cause.
Orthodox rule of divisble injury?
Where the damage is divisible, the defendant will only be liable for the part they cause.
difference between divisible and indivisible injury?
what is the balance of probability standard?
The balance of probability standard means that a court is satisfied a fact or event occurred if the court considers that, on the evidence, the occurrence of the fact or event was more likely than not.
