Tort law Flashcards
Name the stages of negligence
Negligence has a three stage test:
- Did the D owe a duty of care?
- Was this duty breached?
- Did the breach cause damage to the C?
Stage 1 of negligence
Firstly it must be proved that the D owes the C a duty of care. If there is an obvious relationship (E.G doctor/ patient) then it is obvious that a duty is owed (Robinson), and the Campari test is not necessary. If not obvious then fully apply the Caparo test
Full test for stage 1 of negligence
- If duty is obvious - Robinson
- If duty is not obvious- three stage Caparo v Dickman test
1- Was loss/ damage to the C reasonably foreseeable (Kent v Griffiths)
2- Was there a relationship of close proximity (Bourhill v Young )
3- was it fair, just, and reasonable to impose a duty upon the D (Hill v Chief constable of West Yorkshire police ) - Side rule- Robinson- the police owe a duty of care to avoid causing, by a positive act, foreseeable personal injury to another person.
Stage 2 part 1 of negligence
- Firstly, consider what characteristic the D falls under ( this will be the standard to judge whether they acted reasonably).
- If the D is an expert or possesses a particular skill, then they will be judged by the standards of other reasonably competent professionals (Bolam/Bolitho)
- If d is inexperienced or a learner, then they will be judged by the standards of someone experienced and competent (Nettleship vs Weston)
- Children are judged by the standards of a reasonable child of a similar age (Mullins vs Richards)
Stage 2 of negligence
- The D must have breached the duty of care to the C
- Anderson B in ( Blyth vs Birmingham Waterworks) defined a breach as “Doing something the reasonable man would not do, or not doing something that the reasonable man would do”.
- Apply relevant standard of testing (Cild/Learner/expert)
-Apply all of the risk factors
-Conclude stage 2
Stage 2 part 2 of negligence
-Apply the risk factors- These can r or raise the standard of care required of the reasonable person.
1- Probability of harm- More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against very small risks, but does against bigger risks, or risks that are more likely to happen (Bolton vs Stone)
2- Seriousness/magnitude of the risk - How serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken (Paris vs Stepney council)
3- Cot and practicality of the precautions. If the cost of taking the precautions to eliminate the risk is too greats, the D may not be in breach of duty (Latimer)
Side rule for end of stage 2 of negligence
- Possible benefit of the risk- There are some risks which have benefits to society, here there will be no breach (Watt vs Hartfordshire council
Stage 3 of negligence intro and summary
- Itmust be proved that the breach of duty has caused the damage to the C. This is an issue of causation
- Factual causation (Barnett vs Chelsea hospital)
-Legal causation- remoteness of the damage (Wagon mound no.1) - Must be no intervening acts which breaks the chain of causation - Thin skull rule (Robinson vs Post office/ Smith vs Leech brain co)
- Conclude stage 3 and all three stages.
Negligence stage three part 1
-Factual causation asks was the D the cause of the damage in fact, so apply the “but for” test
- “But for the D’s actions, would the damage have occurred anyway ? (Barnett vs Chelsea Hospital )
Negligence stage 3 part 2
- Legal causation- relates to the remoteness of the damage, meaning whether the damage to the C was reasonably foreseeable or was it too remote. If the damage was unforeseeable, then it my be too remote for the D to be the cause in law (Wagon Mound No1)
- Side rule- D need not predict the precise way in which the injury was caused so long as injury of the same type was foreseeable (Hughes vs Lord Advocate)
Negligence stage 3 part 3
- There must be no intervening acts which break the chain of causation.
- Thin skull rule- (Robinson v Post office/ Smith vs Leech Brain Co): The D must take his victim/ claimant as he finds them.
Negligence risk factor 1
Probability of harm- More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against smaller risks, but does against bigger risks, or risks that are more likely to happen (Bolton vs Stone)
Negligence risk factor 2
Seriousness/ magnitude of the risk- The court needs to consider how serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken (Paris vs Stepney Council)
Negligence risk factor 3
The cost and practicality of the precautions. If the cost of taking precautions to eliminate the risk is too great, the D may not be in breach of duty (Latimer)
Stage 1 of psychiatric injury
- The C must be suffering from a recognised psychiatric injury, not ordinary human emotions. (Reilly vs health authority)
- The claimant must show that this illness was caused by a traumatic event or an “Assault on the senses” - (Sion vs Hampsted health authority)
Stage 2 of psychiatric injury intro and definitions
-This stage asks whether the D was a primary or a secondary victim.
- A primary victim is anyone who fears for their own physical safety or is in the zone of danger.
- A secondary victim is an unwilling witness to a traumatic incident, but is in no physical danger.
Stage 2 of psychiatric injury- primary victim test
Page vs Smith established a two stage test for primary victims:
-1- Primary victims do not have to show that the psychiatric injury was foreseeable, merely that some kind of personal injury was foreseeable.
-2- The primary victim does not have to be a person a normal fortitude
Stage two of psychiatric injury- secondary victims part one
Alcock established that the secondary victim must meet the following control mechanisms in order to make a claim:
-1- The victim must have close ties of love and affection to the primary victim.
-2- They must have witnessed the accident or its immediate aftermath with their own unaided senses. McLaughlin vs O Brian stated this required the primary victim to be in their post accidental state, and not cleaned up.
Stage 2 of psychiatric injury - secondary victims test part 2
-3- D must have directly perceived the accident or its immediate aftermath, involving a family member
-4- It is sufficient for the C who was present at the scene of the accident or its immediate aftermath to show that there is a link between witnessing the accident and the illness suffered.
Side rules for stage 2 of psychiatric injury
-1- Rescuers- if they are a primary victim, then they can claim. If they are a secondary victim then they must satisfy the Alcock control mechanisms (Chadwick vs British transport)
-2- Bystanders- Mcfarlane stated that bystanders cannot claim unless they satisfy the Alcock control mechanisms
private nuisance intro and definition
- Private nuisance is the “Unlawful (unreasonable) interference with a persons use or enjoyment of land”.
- It does not matter if the D ha taken reasonable care to not be a nuisance. In Cambridge water, Lord Goff stated, “The fact that the D has taken all reasonable care will not exonerate him”.
Private Nuisance factor 1
- Firstly, the location of the interference must be considered- Leeman vs Montague
- Apply to the scenario , considering what type of area the interference is in (Industrial, residential, a mix)
- Side rule- Damage to Land- If the nuisance causes physical damage to the C’s land, then the issue of location is irrelevant (St Helens Smelting vs Tipping)
Private nuisance factor 2
- Secondly, the more long lasting the interference, the more likely to be a nuisance (Cunard vs Antifyre). Private nuisances are interferences for a substantial amount of time.
- Side rule- time of day- even if the interference was short in duration, it could still be unreasonable due to the time of day (De Keysers royal hotel)
- Side rule 2- Damage to land- and interference which is short in duration may still be W nuisance if it causes damage to the land (Crown river cruises vs Kimbolton)
Private nuisance factor 3
Finally, if the activity of the defendant is motivated by malice, it is likely to be unreasonable (Christie v Davey)
- Side rule : interference with the D’s recreational activities- Hunter vs Canary Wharf- interference with recreational activities will fail
Defences for nuisance
- Statutory authority- Where an act of parliament gives permission for the nuisance (Allen vs Gulf Oil)
- Planning permission- in Gillingham council vs Medway- planning permission could mean that the character of the neighbourhood has changed and therefore the interference is now reasonable.
- Prescription- if the claimant tolerates the nuisance for a substantial amount of time (20 years) before making a complaint.
Vole it-non-fit-injuria - This is where the C consents to the nuisance - Contributory negligence- Reduces compensation due to their own responsibility for the damage.
Remedies available for nuisance
- Damages (Compensation)
- Injunctions for the D to stop doing something
- Miller v Jackson- will not be awarded if it goes against the public interest
- Kennedy’s vs Thompson - can be tailored to meet the requirements of the case
- Abatement-C is entitled to take reasonable steps to reduce the nuisance.
Rylands vs Fletcher definition
Where the D brings something onto their land and stores it there. It escapes and causes damage to the claimants land. This is a strict liability offence so there s no defence just because theD acted with care and attention. There are four stages to prove.
Rylands vs fetcher stage 1
Firstly, there must be a non-natural use of the land which means D has brought something onto the property that was not naturally there. Transco defined non natural use as a use which is” extraordinary and unusual” or as a “special use bringing increase danger to others”
Stage 2 of Rylands vs Fletcher
Secondly, there must be an escape of the thing brought onto the land. There must be an escape from a place that the D had occupation or control of, to a place where they did not (Read vs Lyons).