Tort Flashcards
What is the Bolam test used for in professional negligence?
To determine what constitutes reasonable medical advice, backed by a body of medical expertise and opinion.
The Bolam test is applied at the second stage of assessing professional negligence.
What must the court decide in Stage 1 of the Bolam test?
What is ‘material’ in terms of risks and whether there is a requirement to inform the patient.
This decision is not connected to medical expertise.
Define the duty of care in negligence.
A duty of care is owed to persons who can reasonably foreseeably be injured by another’s actions.
This includes individuals closely and directly affected by another’s act.
What are the ways to generate a duty of care for omissions?
- Precedent
- Statutory Duty
- Contractual Duty
- Sufficient Control
- AOR
- Creation of Risk
AOR refers to ‘Assumption of Responsibility’.
What is the basic standard of care for breach of duty?
D must have behaved as a reasonable and prudent person would in all circumstances.
This is known as the ‘reasonable man’ standard.
Who may have a lower standard of care?
- Children
- Anyone with an Illness/Disability
If a person is aware of their impairment and acts anyway, they may lose the privilege of a lower standard.
What is the burden of proof for establishing a breach?
Balance of probabilities (B.O.P).
This means the claimant must show it is more likely than not that a breach occurred.
What does ‘Res Ipsa Loquitur’ mean?
The thing speaks for itself; used in cases where breach is evident without needing to establish a direct act of negligence.
This is particularly useful in cases of concurrent liability.
What is factual causation in clinical negligence?
Determining if the claimant would not have undergone treatment but for the negligence.
Involves tests such as ‘but for’ and B.O.P over 55%.
What is legal causation concerned with?
Whether the chain of causation can be regarded as broken and remoteness.
This includes considerations of acts of God, third parties, and the claimant.
What is the test for remoteness of damage?
Was the damage reasonably foreseeable?
If it is not too remote, the claimant can recover for their claim.
What are the necessary elements for consent to be valid?
- The claimant had capacity
- The claimant had knowledge
- The claimant knew the risks
- The claimant acted voluntarily
Consent may be negated by statute, and employees have special considerations.
What does contributory negligence refer to?
A partial defense that reduces damages based on the claimant’s own negligence contributing to the harm.
Under the Law Reform Contributory Negligence Act 1945, it leads to a percentage reduction in damages.
What is the main purpose of damages in tort law?
To provide compensatory relief for losses, not penalize.
Most damages are classified as special (provable) or general (non-quantifiable).
What does the Fatal Accidents Act 1976 cover?
Statutory bereavement, loss of income and service dependency, and funeral expenses.
It does not cover intangible benefits.
What defines an employer’s liability?
An employee suing the employer for not taking reasonable care in the workplace.
This is distinct from labor/employment law.
What is the duty of care for employers?
Employers must take reasonable care to provide a safe working environment, including safe equipment and systems of work.
This is a non-delegable duty.
What are the four duties of an employer regarding employee safety?
- Safe/competent employees
- Safe/proper plant and equipment
- Safe place of work & premises
- Safe systems of work
Safe systems of work is an umbrella term for how things are managed in the workplace.
What is the employer’s responsibility when a task is more difficult?
The employer needs to provide greater supervision and safety systems.
This is to ensure that employees are encouraged to use the safest system of work.
What is the ultimate test for employer liability?
The ultimate test is reasonable care.
There are exceptions to the rule regarding this test.
What is the ‘but for’ test in causation?
It is a standard test to determine if the harm would not have occurred ‘but for’ the employer’s actions.
This test can be contested by the employer with evidence.
What is the test for remoteness in employer liability?
The ‘reasonably foreseeable’ test.
Psychiatric harm can be recovered as a consequential harm, but not as a standalone claim.
True or False: ‘Consent’ can be used as a defense in most cases of employer liability.
False.
‘Consent’ is only available as a defense in exceptional circumstances.
What does vicarious liability imply for employers?
Employers can be held responsible for the torts committed by their employees or those under their control.
This is true even if the employer is not at fault.
What are the requirements for a vicarious liability claim?
- A tort was committed
- The defendant is an employee or has a relationship akin to employment
- The tort was committed in the course of employment
All vicarious liability claims are considered strict liability.
What is the control test in determining vicarious liability?
It assesses the degree of control exercised by the employer over the work.
It helps establish whether an employment relationship exists.
What is the sufficient closeness test in vicarious liability?
If the defendant is ‘sufficiently close’ to an employment relationship, it may indicate vicarious liability.
This can arise from various circumstances indicating a quasi-employment relationship.
What is the main exception to employer liability for employee actions?
Unauthorised acts or frolicking on their own.
This means that if an employee acts outside the scope of employment, the employer may not be liable.
What constitutes psychiatric harm in legal terms?
Medically recognized psychiatric harm, such as PTSD or clinical depression.
Grief and simple distress are excluded from this definition.
Who is classified as a primary victim?
The person who is directly harmed or fears for their life during an incident.
Primary victims can recover for psychiatric harm if they meet specific conditions.
