Tort - General Negligence - Cases Flashcards
1
Q
Contractual relationship
A
Stansbie v Troman
Established doc - Contractual relationship
Proximity requirement is fulfilled through contract here, so Caparo test fulfilled (still need to consider stage 3 - fair just and reasonable)
2
Q
Parent-child or familial relationships
A
Stone v Dobinson
Voluntary assumption of DoC
3
Q
Creating or permitting the existence of a dangerous situation?
A
Haynes v harwood
Doc assumed
4
Q
Exacerbating an existing situation
A
Capital and Counties
Doc
5
Q
Econ loss caused by negligent misstatement
A
Hedley Byrne
6
Q
Duty to give careful job references
A
Spring v guardian association
7
Q
Duty of a solicitor to potential clients or beneficiaries
A
White v Jones
8
Q
Neighbour principle
What is it? Which case? Why relevant?
A
Donoghue v Stevenson
Doc principle first established, since an “ocean of liability” was created, so needed to limit it somehow.
Lord Atkin formulated it as the neighbour principle
Said have to look at proximity - he used the bible to establish it as there was no precedent to base it on!
9
Q
Which case expanded liability from the neighbour principle?
A
Anns v Merton
Lord wilberforce 2 stage test: neighbour principle, do we have any policy reasons which negate the existence of a doc?
Expanded liability
10
Q
Caparo-dickman
A
3stage test Foreseeability Proximity Fair, just and reasonable? More defendant-friendly, so reduced no claims - reduced liability.
11
Q
Was the Caparo dickman test an improvement on the previous, 2-stage test in Anns v merton?
A
Claimant point of view: no. Defendant PoV: yes
Criticisms - still fairly vague. It only really added the fair, just and reasonable criterion. So introducing a moral component. & makes test more certain, so harder to evade.
Foreseeability - open to manipulation by the courts. Done on balance of probs, so whether harm is more likely than not.
Proximity(2) and FJR (3)- policy implications are hidden behind these two criteria, so not looking at policy implications directly.
12
Q
Which case would you use for foreseeability? I.e. Stage one of Caparo-dickman test?
A
AG v hartwell
D doesn’t have to foresee harm to the individual, just harm to SOMEONE
13
Q
If C has a condition why will it matter if D has of it?
A
Paris v Stephney
It’ll make harm MORE foreseeable
14
Q
Which case would you use to evidence proximity, I.e. The second stage of the Caparo-dickman test for duty of care?
A
Hill v CC of west Yorks
Jack the Ripper case. Police
C&D must have a relationship of sufficient proximity
15
Q
What does sufficient proximity mean?
A
Geographical
Economic
Social. Do they know each other?
If a public body then need to establish if the claimant is within a class of affected individuals. The size of the class matters for policy reasons - big class means more claimants so less likely to establish a doc on this basis
16
Q
What else would you use Hill v CC of west Yorks for?
A
Police police police Police don't owe a duty to public as a whole, they owe a duty to particular individuals. Or perhaps a class of individuals (provided this class isn't massive!)
17
Q
In which case did a claimant have previous dealings with the police, and why was this relevant?
A
Osman v ferguson
Teacher boy unhealthy relationship.
Relevant because a relationship of proximity was created
But there was no breach of this duty - said police have blanket immunity
Was appealed in Osman v UK
18
Q
If the victim is within a class of claimants, what must the victim be in order to fulfil the proximity requirement? Which case?
A
Potentially identifiable (can't have a massive class) Palmer v Tees
19
Q
What is the court’s attitude towards imposing liability where a third party has committed the tort?
Case?
A
Reluctant
Perl v Camden LBC
20
Q
Where WILL the courts impose liability on D where the tort was committed by a third party?
A
. Vicarious liability - where third party neg, but happens in the course of employment, so c can claim against employer
. Sufficient proximity between D and third party
. Where D created the danger (assumed responsibility)
. Where danger exists on d’s premises - state of premises, occupiers liability
21
Q
Which case for sufficient proximity between a d and a third party? (Where third part committed the tort but claimant can sue D)
A
Dorset Yacht
Large degree of control exists where the number of potential victims is small
So police DO owe a duty where they have a large degree of control and the risk of harm is reasonably foreseeable
22
Q
If D has created/allowed a dangerous situation to arise, even though a third party commits the wrong, would D be liable? When? Case?
A
Topp
When the danger is sufficiently substantial
D has to have created the dangerous situation (or allowed it to arise -omission)
23
Q
Which case for when D has allowed a dangerous state of premises? What must D show to evade liability?
A
Smith v Littlewoods
Must show he has taken reasonable steps to prevent or remove the harm occurring
24
Q
When will a referee owe a doc to the players in sport? Case?
A
Vowles v Evans 2003
First case involving amateur sport where ref owed duty to players
Have to look at type of harm caused (proximity) and ask if it fair, just and reasonable to impose liability
Judges v slow to recognise duty and breach here (hence 2003)
Need to look at level of sport being played - less likely to impose a duty if unskilled (amateur level)
25
What are the five factors you need to bear in mind for the fair and just imposition of liability?
```
Omission?
Floodgates
Insurance (broadest shoulders idea)
Defensive practices (e.g. Police)
Crushing liability (e.g. Where large class of claimants, or lots of very financially substantial claims)
```
26
Generally, can a duty be imposed for omissions to act?
No
Yuan Kun Yeu
Policy reasons, would be too easy to establish duty and impose liability
27
What are the five situations (exceptions) for when a duty WILL be imposed for omission to act?
. Where D exerts high degree of control over v
. Statute imposes a positive duty to act
. A contractual duty exists
. D has voluntarily assumed responsibility for another person
. D has created a dangerous situation (doesn't matter if it's his own fault, or a third party's fault - the D is omitting to act here!)
28
In which case were the police found to be negligent where they omitted to act?
Reeves v Met police commissioner
They exerted a high degree of control over the C, therefore a duty could be imposed
(No potential claimants - class - small - Dorset yacht)
29
In which case did D assume responsibility through an employer-employee relationship, and then omitted to act (so a duty was imposed)?
Costello
30
At which point will D (ambulance) become liable where C has summoned medical assistance and D has failed to act? Which 2 cases highlight this point of law?
When the call has been ACCEPTED
Barrett (child was already in care, so the duty was assumed. D failed to act, child harmed, so breach of duty)
Bolitho
31
Where D has assumed care responsibility for C what are they obliged to do? Case?
Inform the C of the risk of harm or loss
| Mitchell v Glasgow CC
32
Which case for when D has allowed or created a dangerous situation to arise, so a duty can be imposed (I.e. Fair, just and reasonable)?
Capital and Counties v Hampshire CC
| Duty imposed regardless of whether a third party caused it. (So long as harm was reasonably foreseeable)
33
What does 'crushing liability' mean? Why is it unfair to impose a duty in such circumstances? Case?
Crushing liability = not a good thing for the collective welfare
Nicholas H case
Ship. Had already sued (and won) in contract, so it isn't fair or reasonable to impose liability in tort law too. They were suing for the remaining money (so NOT a case of double recovery)
34
General rule for police duty imposition? Case? Why?
Hill
Won't be imposed. Police owe a duty to public as a whole, not to individuals
Would case defensive practices
35
Is there a duty to disclose potential psychological risks of acting as a lay wines or to test a lay witness' susceptibility to psychological damage? Case?
No.
| Leach v CC of Gloucester
36
Do police owe a duty not to disclose confidential information? Case?
Yes. Swinney.
There is no blanket immunity for the police
Here they didn't keep the identity of the informant secret
37
In which case did C argue that police immunity amounted to an Art 6 (fair trial) breach? Were they successful?
Osman v UK
ECtHR said that Art 6 was breached
Criticism: duty of care is a substantive issue. A breach of Art 6 is a procedural issue. No-one was restricting my osman's access to a court here!
The real q should be: who is owed a duty of care?
38
In which recent (2014) case was a duty not imposed on police because it would 'fetter police investigations'?
Robinson 2014
39
Name another case where police immunity was protected. Why was it protected?
Van Colle.
| Because you can't reasonably expect the police to have foreseen danger in this case.
40
Name three exceptions to police immunity. Cases?
Duty for operational (not policy) matters - Rigby
Duty not to disclose confidential info - Swinney
Duty where exert a high degree of control over a small group of potential claimants and are aware of damage (Reeves) or the damage was reasonably foreseeable (Dorset Yacht)
41
Ambulance service - case?
Kent v Griffiths
Only owe a duty as soon as the call is accepted, though they are permitted to deal with more pressing emergencies first.
Ambulance may therefore be liable for operational but not policy matters.
42
Fire services - case? What is the scope of their duty?
Capital and Counties
| No duty to attend a fire, but hey must not exacerbate it if they do
43
Case for emergency call operators?
Michael v chief constable of s Wales
No liability here. Operator didn't hear last part of call so didn't rank it as high enough priority. person killed.
Did what could with info supplied?
Was this incompetence? Could C argue Art 2 breach?
44
What was X v Beds 1995 about?
5 appeals, 2 to do with child abuse, 3 to do with education
Is there a duty to take a child into care?
Should a duty be imposed for the educational provision of children with special needs? If so, what is the scope of the duty?
45
What was the outcome of the educational appeals in X v beds?
Said it isn't fair, just and reasonable to impose a duty to make special provisions for children with special needs since there is a special complaints procedure for this. Reason = policy. Someone could challenge where the local authority chooses to allocate its funding.
However, if the authority DID choose to provide such a service, then they have assumed a duty.
46
What was the outcome of the child abuse appeals in X v beds?
There is no duty to take a child into care. Policy reasons: authority would otherwise act defensively (Hill) by taking lots into care. Would get sued.
Plus, there are lots of different authorities who assume responsibility for a child (e.g. School, social worker), so if a duty were to be imposed, it would be very hard to separate out exactly who owed what duty. Who to blame = difficult.
47
In which case did the authority fail to diagnose dyslexia?
What claim did the Cs make?
Was the D liable?
Phelps 2000
Claim was that it had impacted on their careers
Yes they were. The service (dyslexia screening) had been offered, therefore the duty had been assumed, and breached.
48
When does a local care authority have a doc towards patients? Case?
Barrett
When the child is already in care, so a duty is assumed.
Here the authority failed to place the child up for adoption.
49
In which case did the family specifically request that they didn't want to foster a child with a history of sexual abuse, but then subsequently got one who proceeded to abuse their other children?
What was the point of law in this case?
W v Essex
| Local authority had a duty as they had made ASSURANCES and failed to meet them
50
In which case were the parents wrongly suspected of child abuse? Did they succeed in their claim against the council (for taking their children into care)?
JD v E Berks
There was no duty for the public authority since social workers should have the best interests of the child at heart. Protects those who make difficult decisions.
Could argue that the parents also have he best interests of the child at heart. BUT the duty is to the child, and not to the parents.
51
In which case was it contended that wrongful accusation of child abuse amounted to a breach of Art 8?
Was it successful?
Lawrence v Pembrokeshire CC
| No it wasn't. Court said that those who look after children should be allowed to do so without fear of being sued
52
In which case was a rare skin condition mistaken for bruising (the father was subsequently not allowed to see his child in hospital)?
What did the father argue?
What was the overarching principle to be gleaned from the result in this case?
MAK and RK v UK 2010
Father claimed art 8 infringement. Court disagreed, but did concede that the delay in diagnosis had been too long (incompetence)
SO this case shows that the law hasn't changed that much. Backs up X v Beds reasoning, I.e. That those who make the difficult decisions shouldn't be made liable for failures otherwise defensive practices might be adopted. Distinguished from X v beds on the grounds that it was the hospital who were negligent hear (diagnosis), not the authority (took child away from father - reasonable given the evidence they had)
53
Which case overruled Osman v UK on the Art 6 point?
| Which case was it an appeal from?
Z v UK, appeal from one of the X v Beds cases.
Child abuse - local authorities have no duty to protect children from child abuse, so no art 6 breach.
If a court wants to apply Hill it can - they can still access a court so no breach of Art 6 (art 6 is about procedure, duty of care is a substantive issue!)
There were art 3 and art 13 breaches in this case though.
54
Which case to use on the imposition of a statutory duty?
| What must there not be in order for a duty to be imposed?
Stovin v Wise
| Discretion. Is there is a discretion then the statute is conferring power, not a duty.
55
If a rescue is undertaken and a third party causes harm will the law treat the rescuer favourably? Case?
Yes. Haynes v Harwood.
56
What must there be in order for D to owe a duty to a rescuer? Case?
What are the 4 rescue cases?
Cutler v United Dairies
A risk to the persons or property. Can't go wading in where there isn't a need for it and expect D to be liable.
Consent (contrib neg) may apply where it is a non-emergency situation
Haynes v Harwood (law treats rescuers favourably)
Cutler v United Dairies (risk. Consent can operate for contrib neg where non-emergency situation)
Videan v British Transport (duty owed to rescuer directly, not 'via' victim)
Baker v TE Hopkins (rescuer can only consent to risk in rare situations, I.e. Where he acts with 'wanton disregard' for his own safety)
57
Is the duty owed to a rescuer 'via' the victim? Case?
No. Owed to rescuer directly.
| Videan v British Transport
58
Must the victim be in actual danger for the rescuer to be owed a duty of care?
No, but the rescuer must have reasonably believe he was.
59
In which case was it stated that a rescuer can only ever consent to harm being done to him where he acts with a "wanton disregard" for his own safety?
Baker v TE Hopkins, per Morris J
60
By what standard are learner drivers judged by?
That of a fully qualified driver.
For policy reasons (insurance, broadest shoulders)
Nettleship v Weston
So there is no allowance for inexperience when it comes to the objective standard.
61
Two cases to contrast on the breach of duty in sport?
Condon v Basi
Not liable providing okay by the rules
Blake v Galloway
Liable if D's conduct amounted to recklessness or a very high degree of carelessness
62
Which case was about ear piercing? By what standard was the piercer judged?
William Whiteley
Judged by the standard of a reasonable jeweller piercing ears (not that of a trained medical professional e.g. A surgeon)
63
What is the general reasonable standard? Case?
A reasonable man of their class.
Wells v Cooper
Well in the mini Cooper class
Here was a man performing DIY - judged by this standard and not a professional carpenter
64
By what standard would you judge a professional? Case?
| What about trainees?
Professionals are judged by the standard of a reasonably competent member of their profession.
Wilsher v Essex AHA
Trainees are judged by a standard of a fully competent professional
65
What must we prove the breach did?
Wilsher v Essex AHA (patient went blind as needed more O2)
Must prove the breach more likely than not caused the damage. B of P approach.
Usually decided on an all or nothing basis
66
If a professional is operating in a manner compliant with common practice (industry norm) can they be found to have breached their duty?
Yes
| Re Herald of Free Enterprise.
67
Standard of care for children? Two cases?
Is lower.
Mullin v Richards
15 yr old judged by a 15yr old standard.
Orchard v Lee 2009
23 yr old in an orchard playing tag
68
What does res ipsa loquitur mean? Case?
The thing speaks for itself, I.e. Where it is so obvious that the duty has been breached and there is not other explanation for it.
Rare
St Katherine's Docks
69
What were the cases about cricket? What were the points of law?
Bolton v Stone
Cricket. Hit on head.
A reasonable man would not have foreseen harm and taken the necessary precautions against it?
There is no requirement for D to guard against very minor risks.
Miller v Jackson
To do with the boundaries, so greater risk than in Bolton v Stone. Got damages, but not an injunction.
70
Which case was about disinfectant in the anaesthetic? What was the point of law?
Roe v Ministry of Health
No need for D to guard against unknowable risks at the time of the act.
Rogue roe. Roe's eggs in the anaesthetic.
71
When must greater care be taken? Two cases?
Paris v Stephney
Greater care just be taken where D has knowledge of C's condition, since the harm is more foreseeable.
Watson
Greater care is required where there is risk of causing serious injury.
72
When is an action less likely to breach the standard of care? 2 cases?
Where the action is of some benefit to the public
SARAH 2015
S.4 heroes
Watt (jack crushed man in lorry, was deemed ok since this was the only way of getting the jack to the fire brigade in time)
Scout Association v Barnes
73
What was the case about a flooded factory and three tonnes of sawdust? What was the point of law?
Latimer
There was no breach of duty here.
Not necessary for D to take precautions that are unreasonable.
Cost was factored in here
74
In a prison hospital can you expect the standard of care you'd get in a normal hospital?
No. Funding used to secure prisoners
| Knight
75
What was the case about bouncy castles? What was decided?
Harris v Perry
| No breach since expect parents to take reasonable care in supervising.
76
Three cases on breach of duty in medical context?
Bolam test - has D taken a reasonable course of action as determined by an acceptable or reasonable body of medical opinion.
Sutcliffe - common practice taken into account - makes actions more reasonable, so less likely to constitute a breach
Bolitho - Court has to be satisfied with the reliability of the expert - highlights that the matter is for the court to decide and Minot for the medical expert!
77
What are the two types of causation that must be proved? Explain each, inc tests.
Legal = remoteness (must be no break in chain) breaks in chain can be caused by an act of a third party, an act of the claimant, an act of God or natural event
Factual = the beach must be physically connected with the damage caused.
But For
Material Contribution
Balance of Probs (only consider last two if but for test doesn't produce a clear result)
78
Which four cases would you use to talk about the But For Test?
What is the but for test?
But for D's actions would C have sustained damage/loss
Barnett v Chelsea and Kensington Hospital
Usually decided on an all or nothing basis (Hotson)
Can lead to unfairness:
Summers v Tice (2 hunters shot, don't know which one caused the damage)
Sindell v Abbot Labs (200 manufacturers, not sure which one created , court decided that Cs could sue any one of them and they split the cost between them)
So unfairness here since liability was hugely increased. Floodgates opened. Litigation.
79
Describe the material contribution approach to causation? Three cases to mention/describe.
Did D's breach materially contribute to C's harm (Bonnington) or risk of harm (McGhee)?
If yes then D will be liable for the entirety of the damage/loss regardless of whether there were other contributory factors.
Bonnington (decided before Fairchild) was about progressive diseases stemming from dust exposure. So D's breach was found to have materially contributed to C's harm.
McGhee - non-progressive diseases (many employers but only one exposure caused it). Dermatitis. So slightly changed the test in this context to asking whether D's breach materially contributed to the RISK of harm? so treating contribution to the risk of damage like contribution to damage itself.
Was rejected in Wilsher,must restored in Fairchild.
Mountford - teacher selected overage boys to play on a rugby team and was deemed to have materially contributed to the harm (caused to another player)
80
What are the two cases on multiple consecutive causes?
Baker v Willoughby
Worsening the SAME damage
Run over (D1) , works in a scrap metal yard, shot in same leg (D2)
Tort followed by tort. Divisible. Each D liable for respective damage caused.
Jobling v Associated Dairies
Tort + natural event (illness - taken disabled)
D not required to compensate C for the damage caused by the natural event, provided it was unconnected with the original tort.
81
When was the first time material contribution used in a medical context?
Bailey v MoD
Multiple, indivisible causes. Last tort was medical negligence. Couldn't answer but for test so applied material contribution.
So applied Bonnington - here each exposure materially contributed to the harm (not the risk of harm, that's McGhee and Fairchild!)
82
If to you have multiple independent causes which cause DIFFERENT damage which approach might you use?
The balance of probabilities approach.
Fitzgerald v Lane
Here apportionment was used.
83
What was Fairchild about?
Asbestos.
Multiple cumulative causes. Indivisible harm. Risk of damage increases with each exposure.
Used the material contribution approach, so approved McGhee. Ask if the D materially contributed to the risk of harm. HoL allowed this approach on the grounds of fairness. It wouldn't be fair for V not to get compensation. This outweighed the fact the potential injury to D (I.e. That you can pick one D and they're liable for the full extent)
84
What are the criticisms of the Fairchild case?
It created a lot of uncertainty. Lots of litigation where the but for test couldn't be answered so they tried to argue Fairchild should be applied. E.g. Chester v Afshah
Led to the Compensation Act 2006 (this overturned Barker v Corus)
Impossible to reconcile this case with Gregg v Scott
85
In which case did the HoL want to send a message to surgeons telling them that they need to WARN patients of the risk involved?
Chester v Afshah
Patient said she would've delayed the operation had she known the risk of harm. Couldn't answer the but for test, so C tried to argue that the Fairchild approach could be applied.
HoL let C win as wanted to make surgeons inform their patients of the risk of harm.
Argue this case is decided wrongly. When answering the but for test should be looking at D's BREACH. Here D's breach was not informing the patient (surgery not a breach under Bolam test) so C should not have won.
Case was decided on policy reasons.
86
Which case was discredited by the introduction of the Compensation Act 2006? Why?
Barker v Corus
Asbestos - apportionment approach used.
S.3 of the Compensation Act 2006 said that apportionment shouldn't be used; can instead claim full damages from one (negligent) employer.
87
Which case would you use to illustrate s.3 of the Compensation Act 2006 being used?
Sienkiewicz v Grief
Asbestos exposure - some tortious exposure and some non-tortious exposure (he lived in a port full of asbestos).
Could C use Fairchild? Can't sue the atmosphere!
Yes. So Fairchild does apply where have a tortious and non-tortious exposure.
88
Was statistical evidence permitted in Sienkiewicz v Grief?
| What were the concerns expressed in the case?
No.
Statistical evidence was not permitted to try quantify D's material contribution to the harm.
Idea= if could quantity with accuracy then there would be no need to apply the Fairchild approach. The application of Fairchild is based on a 'rock of uncertainty'.
Lord Brown was concerned that the decision paved the way for speculative claims and would therefore increase liability (since a tortious exposure and non tortious exposure = Fairchild application)
Material contribution doesn't require >50%, just have to show dome contribution. Liability therefore expanded by this case.
89
What do you need to be able to depart from the but for test?
A good reason! Can't just jump to Fairchild
Sanderson v Hull
Poultry farm, infection, couldn't prove D's negligence caused the infection.
The trial court applied Fairchild for no good reason, CoA overturned. Can't just jump to Fairchild just because you can't prove D's breach caused the damage.
90
Gregg v Scott. Go.
Lump under arm. Doctor didn't refer. Chance of full recovery 42% -> 25%
Couldn't prove the breach caused the damage. Tortious and non-tortious source. Court should've applied Fairchild but didn't as it would've made it too easy to sue the NHS.
Loss of chance reasoning was declined.
HoL instead applied BofP reasoning, so the doctor wasn't liable. It is impossible to reconcile this with Fairchild.
BofP should really just be for where there are multiple independent causes of damage (so damage DIFFERENT). Here all the causes were worsening the same damage, so should really have been the material contribution approach.
HoL were worried there were too many exceptions to the 'but for' test. So shows there isn't much consistency in terms of when the courts decide to apply the Fairchild approach.
91
An act of a third party will only break the chain of causation if it is _____ ?
Unforeseeable
Knightly v Johns
Tunnel, police negligent twice (didn't shut tunnel, told officer to go back down). Driver then hit policeman. Driver's neg
92
The chain of causation is more likely to be broken where the third party's act is ____ or ____ ?
Intentional or reckless.
Lamb v Camden
Council breached duty - water main- flat flooded. Squatters. Damage.
So damage done by squatters was too remote. It was also foreseeable.
Denning: they should've secured their house and taken out insurance.
93
Which cases make up the trilogy of 'falling over cases'?
Spencer 2009
Leg. Petrol station. Manhole cover. Wheelchair for rest of life.
Contributory negligence, so damages reduced.
McKew v Holland
Injury to keg, went to view a house, leg gave way as going down stairs, broke other leg as jumped down remainder of stairs
C behaved unreasonably - he didn't have to go down the stairs in the manner he did!
Wieland
Neck injury so she couldn't wear bifocal glasses. Son's workplace on way home from hospital. Fell on last step.
D was liable, C's acts were not unreasonable as had help of her son. Reduced damages for contributory negligence.
94
In which case was suicide held to be a source of contributory negligence?
In which case was D fully liable for C's suicide?
Reeves v Met Police Commissioner
Police left the trapdoor open in a prison, Reeves hanged himself
There was a DoC and C's actions were not a novus actus, but it was contributory negligence, so damages were reduced.
Corr v IBC
C's actions didn't break the chain where C owed a duty to prevent him from taking such actions, since C's actions were precisely thoseD was supposed to prevent!
The reason C was feeling suicidal was a result of D's negligence, so D was liable.
95
In which case was a child said to be the damage caused by D's breach? What was the point of law?
Emeh v Kensington and Chelsea AHA
Sterilisation operation went wrong, C fell pregnant. Said the unborn child was the harm.
Her refusal to have an abortion did not break the chain, esp given that she only found out at 20 weeks.
96
What would you use Wagon Mound No 1 for?
To show that D will only be liable where the TYPE of damage is reasonably foreseeable.
Remoteness.
97
Only the ____ of harm must be foreseeable. 2 cases?
Type
Remoteness.
Hughes v Lord Advocate
(Man hole open. Tent, lamp, 8 yr old boy went in, knocked lamp, explosion.
```
Jolly v Sutton
Wooden boat (would attract children), playing pirates, so D liable
```
98
Which case would you use as the authority for the fact that the victim must be taken as he is found?
Smith v leech brain
| C's condition is irrelevant.
99
What is the Bolam test?
Has D taken a reasonable course of action as determined by an acceptable or reasonable body of medial opinion?
100
The 4 main cases on medical negligence are?
Block
Bolitho
Sutcliffe
Montgommery
101
In which case was it stated that the court must be satisfied with the reliability of the medical expert (used in the Bolam test)?
Bolitho.
| The power is with the court to decide if there has been a breach of duty, not with the medical expert.
102
What is the 'test of materiality'? Case?
Montgommery 2015
Woman not told of the 9-10% risks of something going wrong if she had a natural birth. Son born with severe disabilities.
The test of materiality used since Bolam not appropriate.
This test is more patient-focused and asks if you need to look at whether a patient would attach significance to the risk if informed of it?
The doctor is under a duty to inform the patient of the material risks and alternative treatments available.
103
What must C's actions be/do in order for D to rely on the defence of contributory negligence?
Must be negligent and have contributed to the injury (not the accident itself, look at the HARM). But if C's actions contributed to the injury AND the accident then damages may be reduced even further.
It is irrelevant whether C has broken the law or not
Froom v Butcher
C wasn't wearing a seatbelt. This was contrib neg, as worsened the harm.
104
Which case would you use as the authority for the fact that C's age will be taken into account (where C is a child)?
Gough v Thorne
Gough with a cough from drinking too much wine (equity case) - underage - Gough v Thorne
105
Can rescuers contribute to negligence? 3 cases on this.
Generally rescuers are immune from contributory negligence, but they may contribute where they helped to create the situation in the first place.
Harrison v BRB
Brb gotta go rescue. Can't sue me.
Baker v Hopkins
Rescuers are not generally contrib neg, however they may consent to a risk where they act with a wanton disregard for their own safety.
In this case rescuer was told not to go down the well, however it was held not to be a reckless action when he did, so wasn't contrib neg.
Cutler
Consent may apply for rescuers in some non-emergency situations.
106
When risks are undertaken at an employer's request what are they deemed to be?
Involuntary. But they can be voluntary where the employee takes an unauthorised risk with full knowledge of what they're doing.
ICI v Shatwell
Not so Shatwell in the quarry. Controlled explosions, didn't retreat to a safe distance.
107
Is consent s defence to a drunk driver who gives a lift to a consenting passenger? Which statute says this?
No, s.149 Road Traffic Act.
108
Which two cases would you use as the authority for the fact that C's drunkeness will not automatically vitiate his consent?
Saaco
Sarky saaco drunk but wholly consenting.
Morris v Murray
17 whiskeys and a plane. Storm, pilot died died, C survived. C had agreed to risk, despite his drunkenness (he also was assumed to have full knowledge of risk, since he had appreciated the risk's nature and extent despite being drunk).
109
Where the claim arises in connection with C's own illegal act can C pursue the claim?
No
Vellino
Vellino was something of a folk hero, broke out of custody , jumped out of a window and was hurt. He couldn't claim against the police.
110
If you are found guilty of manslaughter can you pursue a claim in tort?
No. Tort law should be consistent with criminal law.
| Gray v Thames Trains
111
What are the three things you need for consent to operate as a defence?
Agreement - may be express or implied (Morris v Murray, Saaco)
Knowledge (Morris v Murray)
Voluntary consent (express or implied)
112
What does ex turpi Causa mean? Two cases to compare?
Illegality or public policy - acts as a complete defence.
Didn't apply in Joyce v O'Brien 2013 where a crime was being committed at the time of the accident (standing on the back of a van escaping the scenes of a crime)
BUT
Revill v Newbury
C stealing form a shed, d sleeping in shed with shotgun. Warning shot was fired then shot C in the leg through the door.
So here CoA allowed the claim despite the illegal act being committed by C (criminals have some rights too. D used too much force)
113
When did the illegality defence apply successfully?
Moore v Stephens 2009
| Company = legal person. c suing accountant as he knew of fraud. Illegality defence applied so couldn't claim against D.
