Tort Law - Breach of Duty Flashcards
Bolton v Stone general
Cricket club
Mansfield v Weetabix Ltd general
Malignant insulinoma
How was Social Responsibility and Heroism Act 2015 largely response to perceived compensation culture?
Factors laid down therein were already considered under common law
Barnett v Chelsea and Kensington Hospital JUDGMENT
Do not take sickness into account
Part 1 of the Consumer Protection Act 1987
Statutory defence if supplier/producer/manufacturer could not have reasonably avoided the risk due to lack of medical/scientific knowledge at the time
Who in minority in Nettleship v Weston thought skill should matter?
LJ Salmond
What two disadvantages to the Learned Hand Formula are there?
Assumes L (gravity) can have an accurate value, and distasteful to allow infliction of harm in the name of economic efficiency
Unusual susceptibility to injury through allergy needed to be considered for gravity of harm
Wither v Perry Chain
Condon v Basi per Sir John Donaldson MR
Higher degree of care required by a professional player
Mullin v Richards judgment
Allow attribution of age and maybe even gender
Hucks v Cole judgment
Negligent despite others would have done same as easily avoidable and taught in prelim stages of medicine
Mustill J in Thompson v Smith Shiprepairers
Employer needs to keep up to date but ‘slow to blame him for not ploughing a lone furrow’
Thompson v Smith Shiprepairers
D not expected to ‘plough a lone furrow’
Wells v Couper general
Door knoc
What case stated that foreseeability is always a question of degree, and Bolton does NOT mean it is justifiable to always neglect risk of small magnitude?
The Wagon Mound (No.2)
What defence is found in Part 1 Consumer Protection Act 1987?
‘Development risks’ defence
What case explored the standard expected of alternative medicine?
Shakoor v Situ
What did Compensation Act 2006 do?
Restated current common law, requiring courts to have regard to if liability might prevent/discourage desirable activity
Phillips v Whiteley (William) Ltd general
jeweller, ear, infection
CoA said irrelevant if you could show a standard almost applies to an activity
Chipchase v British Titan Products
Bolam v Friern Hospital Management Committee general
ECT broken bones
Paris v Stepney BC general
One eye, goggles, nail
What approach to BoD was accepted overall in Bolton v Stone?
Magnitude of risk is part of wider inquiry, not ultimate test in itself, so probability is only one factor
Easily avoidable risk, elementary teaching, but others would have done same
Hucks v Cole
What case shows appellate courts should not interfere with trial judge’s finding of primary facts?
Benmax v Austin Motor
L&O on Paris v Stepney BC
Shows ‘time dimension’ of negligence, as likely it would be negligent both not to give employees with one eye AND two eyes goggles
Sikh wedding, egg
Haley v London Electricity Board
Whipper v Jones judgment
Not foreseeable so not negligent
Baker v Quantum Clothing Group
Look to Health and Safety regulations (in this case on noise) for standard of care expected
Edward Wong Finance v Johnson Stokes general
Conveyancing solicitors
Who tried to explain Reid’s support in Latimer v AEC?
L&O
Knee plastic flag
Sutton v Syston Rugby Football Club
What case suggested res for res ipsa loquitur in medical negligence needs to give rise to a negligent act needing no expert evidence?
Ratcliffe v Plymouth
What is the Learned Hand Formula?
Breach is when B (prevention) is less than PL (probability and gravity of injury)
Phillips v Whiteley (William) Ltd judgment
Reasonable care shaped by nature of task
Name five influencing factors for BoD
Timing, context, gravity of harm, likelihood of damage and cost of precautions
Leamington spa, broken leg
Condon v Basi
What case suggested an RP would only act if damage was probably/likely?
Bolton v Stone
Where was the basic test set down for BoD?
Blyth v Birmingham Water Works
What does Mulheron argue about the applicability of Bolitho?
Generally recognised as a ‘rare’ occurrence, triggered by a degree of ‘Wednesbury unreasonableness’
What does res ipsa loquitur mean?
‘The thing speaks for itself’ - C can succeed even without causation evidence
Mansfield v Weetabix Ltd judgment
Allow unknown disability to be taken account of
The ‘Learned Hand’ formula comes from what case?
United States v Carroll Towing
Sutton v Syston Rugby Football Club general
Knee plastic flag
What are at least four of the arguments that Cane considers AGAINST fault principle as basis for payment of compensation?
Bears no relation to degree of fault, bears no relation to means of tortfeasors, harmdoer may be held legally liable without moral culpability or vice versa, fault principle pays little attention to conduct/needs of V, justice may require compensation without fault, often difficult to adjudicate allegations of fault and fault principle contributes to blaming culture and discourages self-responsibility
What three problems does Cane point to in adjudicating allegations of fault?
Difficulties in the nature of the legal test (abstract), problems of proof (happen quickly) and concentrating too much on one specific cause to exclusion of other evidence (which statistical investigation would throw light on, e.g. altering surface of road)
What does Medical Innovation Bill 2015 propose?
Doctor allowed to depart from ‘accepted body of opinion’ provided the decision is responsible, where responsible is detailed as requiring things like consultation with other doctors and detailed records on treatment and effects
DA v North East London Strategic HA general
Two mothers giving birth, brain damage to one not helped
Khou v Gunapathy judgment
Singapore CoA emphasised narrow construction of Bolitho - ‘unreasonable’ is not a ‘merits-based’ question of expert opinion
How does Lee argue externally generated norms make an important epistemic contribution to the RP standard?
External standards by experts in a wide range of areas
King v Sussex Ambulance judgment
Altruistic purpose made them not liable
Gold v Haringey Health Authority
Bolam applies to any profession requiring a special skill/knowledge/experience
Whippey v Jones general
Great dane, hector
Brown v Rolls Royce judgment
Failure to take a common precaution does not NECESSARILY connote negligence - just places evidential burden on D
Why did Lord Saatchi propose Medical Innovation Bill 2015?
Believed Bolam encourages doctors to act conservatively and not be experimental
What statute is relevant for timing as an influencing factor for BoD?
Part 1 of the Consumer Protection Act 1987
What was one of the last jury cases?
Bolam v Friern Hospital Management Committee
Sub-prime mortgage, 90% of property value
Paratus AMC v Countrywide Surveyors
L&O use this case to suggest courts more likely to declare widespread practice negligent than medical practitioners
Edward Wong Finance v Johnson Stokes
Decide reasonable care by nature of task
Phillips v Whiteley (William) Ltd
Roe v Minister of Health general
Disinfectant and anaesthetic glass vials
Very rare for individual to argue too costly to spend on prevention
Palmer v Cornwall CC
Barnett v Chelsea and Kensington Hospital general
Tea, arsenic, doctor ill
Industrial deafness, knitting mills
Baker v Quantum Clothing Group
Withers v Perry Chain general
Allergy, barrier cream
What case said Bolam requires the body to be ‘Both respective and responsible and experienced in [the] particular field of medicine’
Hills v Potter
What approach to BoD was accepted in parts of Bolton v Stone?
Greater probability of foreseeable harm
Why does Cane believe fault principle in BoD bears no relation to DEGREE of fault?
Courts rarely distinguish between negligence and error/mistake, despite knowing extreme carelessness is frequently committed with no/minor consequences
Door knob
Wells v Couper
Tesco v Pollard
No compliance with voluntary standard regulation was still fine but caution in drawing hard lines between voluntary and mandatory standards
Who argued ‘Reasonableness’ inevitably reflects male perspective because it’s a construct of patriarchal society and thus should be discarded
Martin
Nettleship v Weston general
Learner drivers
Smeldon v Whitworth general
Collapsed rugby scrum
United States v Carroll Towing general
‘learned hand’ formula
What does Cane argue Bolton v Stone shows?
English law does not require D to pay for gain/benefit at the expense of V (e.g. no need to build higher walls), unjustly enriching them, but justice may require compensation without fault
Smeldon v Whitworth judgment
Referee failed to apply standardd phase sequence - no need for reckless disregard, just simply oversight
What case does Cane rely on to suggest justice may require compensation without fault?
Bolton v Stone
Ratcliffe v Plymouth
Res in medical negligence needs to give rise to a negligent act needing no expert evidence (e.g. cutting off the right instead of left leg)
Who highlighted the ‘time dimension’ of negligence?
L&O
Hucks v Cole general
Easily avoidable risk, elementary teaching, but others would have done same
Coxall v Goodyear GB general
‘nursemaid school of negligence’
Blake v Galloway general
Bark in eye
What judge in what case showed lack of obviously compelling reason for a lower standard of care in emergency context?
King v Sussex Ambulance - LJ Buxton
Bolitho v City and Hackney Health Authority
Body of opinion needs to be ‘responsible’ with a ‘logical basis’ and need to show EXPERTS have weighed up risks and benefits of treatment
What case suggested simple oversight (not reckless disregard) is enough to breach duty of care?
Smeldon v Whitworth
Name at least two cases on timing being an influencing factor for BoD
Roe v Minister of Health; Mage v Trustees of the Birmingham Archdiocese of the Roman Catholic Church; Smith v P & O
Baker v Quantum Clothing Group general
Industrial deafness, knitting mills
From what jurisdiction is the Learned Hand formula?
America
Horseman and cameraman
Woolridge v Sumner
Failure to take a common precaution does not NECESSARILY connote negligence - just places evidential burden on D
Brown v Rolls Royce
Bark in eye
Blake v Galloway
What two cases does Lee rely on to show effect of changing and evolving knowledge on past effect/damage?
Thompson v Smith Shiprepairers; Bolam/Bolitho compromise
Maynard v West Midlands Regional Health
If D professes a special skill, held to professional person with that skill
Judge cannot choose one opinion over another if both satisfy Bolam test
Maynard v West Midlands Regional Health Authority
What did Lord Reid in Bolton state about cost of precautions?
Inappropriate to take them into account
Look to Health and Safety regulations (in this case on noise) for standard of care
Baker v Quantum Clothing Group
Roe v Minister of Health judgment
Assess if D had been negligent in light of knowledge existing at the time - no benefit of hindsight
Weinrib
‘Cost of precautions is irrelevant’ in English law
Haley v London Electricity Board
Sikh wedding, egg
Montgomery v Lanarkshire Health Board judgment
Exception to Bolam when negligently fail to warn of ‘material risks’ which is something the RP in C’s position would regard as significant
Latimer v AEC general
Flooding, sawdust, close factory
Bolam applies to question of amount of info a medical practitioner needs to give to patient on risks
Sidaway v Board of Governors of Bethlem
What case made it clear ‘unreasonable’ from Bolitho is not a ‘merits-based’ question?
Khou v Gunapathy
Wilsher v Essex Area Health Authority
HoL - although Bolam gave scope for difference in medical opinion, judge could still find one to be negligent
Pearce v United Bristol Healthcare
CoA used Bolitho to extend Sideway so that if there is a significant risk which would affect normal person’s judgment, normal responsibility of doctor to inform patient.
LJ Salmond in Nettleship v Weston
Thought skill should matter
King v Sussex Ambulance general
Paramedic fell helping patient from home to ambulance
Dermatitis, oil machine, barrier cream
Brown v Rolls Royce
who highlighted the Compensation Act 2006 is narrowly drafted and gives no wide reassurance as a result?
Morris
Paramedic fell helping patient from home to ambulance
King v Sussex Ambulance
What does Cane believe the fault principle does in terms of removing self-responsibility?
Focuses on individual’s rights against others, rather than their self-responsibility
Benmax v Austin Motor
Appellate courts should not interfere with trial judge’s finding of primary facts (unless perverse), but can evaluate evidence to work out proper inference
Palmer v Cornwall CC
Very rare for individual to argue too costly to spend on prevention
Edward Wong Finance v Johnson Stokes according to L&O
L&O suggest courts more likely to declare widespread practice negligent than medical practitioners
What judge and in what case suggested it was inappropriate to take cost of precautions into account?
Lord Reid in Bolton v Stone
Lee on Compensation Act 2006
Might lead to broader judicial enquiry of how decision impacts wider world, but ‘notoriously uncertain as to its effect and purpose’
Cricket club
Bolton v Stone
What approach to BoD was rejected in Bolton v Stone
Foreseeability
What two cases conflict on the duty of an employer to dismiss/not dismiss a willing employee?
Coxall v Goodyear GB; Withers v Perry Chain
How do L&O explain Reid’s support in Latimer v AEC, despite Bolton?
Qualification given in Bolton - if risk is so great as to require D to desist altogether, can be found negligent even if impractical to pursue activities in a safer fashion
Who highlighted how RP test can be used to justify discrimination?
Moran
Age is an allowed characteristic, and maybe even gender
Mullin v Richards
Sutton v Syston Rugby Football Club judgment
Rugby matches ‘obviously’ desirable activity and standard of care shouldn’t be set so high as to be discouraging
Aircraft do not usually crash so pilot was reasonably expected to explain why it did for res ipsa loquitur
George v Eagle Air Services
How is there cautionary wording in Social Responsibility and Heroism Act 2015?
Only requires courts to have regard to factors
Who said that Blyth is more of a normative than descriptive test?
Lee
Who highlighted the ‘“Cloggers’ Charter’ so higher league players need take more care even when playing with lower league
Geary
Mental disorder, dual carriageway
Widdowson v Newgate Meat Corp
What case states that If accident usually avoided in proper course of things, reasonable evidence accident arose for want of care
Scott v London and St Katherine Dock
Paratus AMC v Countrywide Surveyors general
Sub-prime mortgage, 90% of property value
Why should the Learned Hand formula be rejected?
Too based on economics, lack of clarity and overlooks factors like purpose and context of activity
What did the minority in Paris v Stepney BC say?
Serious accident regardless of Vs number of eyes
Tomlinson v Congleton BC general
No swimming, dangerous water
Mog v Pettman Smith judgment
No need to give full reasons
What were the two principles for negligence of employer through fault of omission in Morton v William Dixon?
Is what D did not do commonly done in the circumstances and was what D did not do so obviously wanted it would be follow to neglect to do it
What made Weinrib conclude ‘the cost of precautions is irrelevant’ in English law?
Lord Reid in Bolton
Social Responsibility and Heroism Act 2015
Courts stated take into account if D acted for benefit of society, in a predominantly responsible way and if D was heroic
United States v Carroll Towing judgment
Three factors - probability event would happen P), gravity of injury that would be caused (L) and cost of preventing event (B)
Why is the precedential value of BoD decisions so low?
Factually specific cases
Morris on Compensation Act 2006
Narrowly drafted and no wide reassurance to help with perceived compensation culture
What Bill has Lord Saatchi proposed?
Medical Innovation Bill 2015
What judge sat on both Bolton and Latimer v AEC?
Lord Reid
Who said ‘cost of precautions is irrelevant’ in English law?
weinrib
Condon v Basi general
Leamington spa, broken leg
What case shows courts (HoL) maintaining control over negligence case in medicine after Bolam?
HoL in Wilsher v Essex Area Health Authority although Bolam gave scope for difference in medical opinion, judge could still find one to be negligent
Montgomery v Lanarkshire Health Board general
Pregnant, diabetic and short
The Wagon Mound (No.2) general
Oil water
Watt v Hertfordshire CC general
Firemen, special equipment but no trailer
Smith v West Yorkshire HA
Bolam doesn’t require doctor to ‘second-guess’ what other professionals may think - only needs to act according to practice accepted as proper by a reasonable body of persons practicing the same art
Bolam v Friern Hospital Management Committee judgment
Assessment of standard of care can lead to ‘one or more perfectly proper standard’ as long as in accordance ‘with a practice accepted as proper by a reasonable body of medical men skilled in that particular art’
Woolridge v Sumner judgment
Needed recklessness of rider to breach (Diplock LJ)
Why does Cane believe the fault principle has not greatly contributed to compensation culture?
Cannot explain greatly increased volume and changed pattern of tort claiming over that period
Bolton v Stone judgment
Creating a risk doesn’t automatically mean negligence - RP would only act if damage was probable/likely
Maynard v West Midlands Regional Health Authority on Bolam
Judge cannot choose one opinion over another if both satisfy Bolam test
Garcia v St Mary’s NHS Trust judgment
Medical opinion not flawed not to have heart surgeon on call as doesn’t mean he would have been available for V
Which case used Bolitho to extend Sidaway on informing patients?
Pearce v United Bristol Healthcare
Collapsed rugby scrum
Smeldon v Whitworth
Why does Cane suggest increased claims may be one aspect of?
larger social development of ‘rights culture’ (e.g. HRA) built on strong concept of individual entitlement
Ng Chun Pui v Lee Chuen Tat general
Coach central reservation
Flooding, sawdust, close factory
Latimer v AEC
Geary on Condon v Basi
‘“Cloggers’ Charter’ so higher league players need take more care even when playing with lower league
Smith v P & O general
Employee secondary exposure to asbestos
How does Cane believe the ‘Why pick me’ argument is solved?
By liability insurance to a degree, reducing tort injustice and spreading burden of compensation
If neither give evidence, D cannot rebut inference from maxim of res ipsa loquitur
Widdowson v Newgate Meat Corp
Bolton v Stone gave what three possible approaches to test for BoD?
Foreseeability, greater probability of foreseeable harm and magnitude of risk is part of wider inquiry, not the ultimate test
What are the three subheadings under context as an influencing factor?
Social utility, sport and emergency
What act referred to but didn’t define ‘desirable activity’?
Compensation Act 2006
Posner on learned hand formula
Economic analysis of law, only leading to economically efficient liability
Hajgato v London Health Association
Bolam places medical profession ‘above the law’
Who argued Bolitho introduced asymmetry between litigous challenges facing V and D?
Mulheron
Sickness is an excluded characteristic
Barnett v Chelsea and Kensington Hospital
Two mothers giving birth, brain damage to one not helped
DA v North East London Strategic HA
‘Unanswerable statutory defence’ - as long as D complied with limit set by P, reasonably entitled to believe they’re okay, no DoC
Budden v BP Oil Ltd
Why does Cane believe it may not be a bad thing if tort law IS out of step with morality?
If main purpose is to compensate, no reason why moral fault should be criterion at all
Bolam doesn’t require doctor to ‘second-guess’ what other professionals may think - only needs to act according to practice accepted as proper by a reasonable body of persons practicing the same art
Smith v West Yorkshire HA
Name at least two cases showing gravity of harm is an influencing factor for BoD
Paris v Stepney BC; Withers v Perry Chain; Haley v London Electricity Board
Coxall v Goodyear GB judgment
Duty on employer to dismiss even a willing employee
What case supports Phillips v Whiteley on nature of the task shaping standard of care?
Wells v Couper
What two bases for reform are there on BoD?
Medical Innovation Bill 2015; Re ipsa loquitur
Which case gave an exception to Bolam when negligently fail to warn of ‘material risks’ which is something the RP in C’s position would regard as significant
Montgomery v Lanarkshire Health Board
D not expected to ‘plough a lone furrow’
Thompson v Smith Shiprepairers
Hills v Potter
‘Both respective and responsible and experienced in [the] particular field of medicine’
Oil water
The Wagon Mound (No.2)
Woolridge v Sumner general
Horseman and cameraman
Honore on RP standard
Effectively imposes strict liability on those physically/mentally unable to reach RP standard
Name at least two cases on cost of precautions as an influencing factor for BoD
Latimer v AEC; Withers v Perry Chain; Coxall v Goodyear GB
Body of opinion needs to be ‘responsible’ with a ‘logical basis’ and need to show EXPERTS have weighed up risks and benefits of treatment
Bolitho v City and Hackney Health Authority
Baker v Quantum Clothing Group judgment
Used broad regulatory context to indicate descriptively what those in the industry knew about deafness at X time when examining ‘fault’
Who said it would require a v basic error or logical inconsistency for court to be sufficiently versed to challenge what was done under Bolitho test
L&O
Full reasons of barrister
Mog v Pettman Smith
How does Lee argue externally generated norms make an important pragmatic contribution to the RP standard?
Provides info on availability and expectation of precautions
Crash landed plane
George v Eagle Air Services
Body from Bolitho can be minority
McCallister v Lewisham and North Southwark HA
L&O on Bolitho
Need v basic error or logical inconsistency for court to be sufficiently versed to challenge what was done
What case does Lee refer to in order to show D can be found to have acted reasonably despite failure to comply with regulation?
Tesco v Pollard
Withers v Perry Chain on cost of precautions
Employer need not stop willing employee
What other explanation of res ipsa loquitur does Atiyah give, which he doesn’t subscribe to?
Doesn’t affect burden, leaving it on C - just describes what inferences are and are not permissible
Chipchase v British Titan Products general
Narrow platform 6” higher
Coach central reservation
Ng Chun Pui v Lee Chuen Tat
What case suggests even under res ipsa loquitur, burden always falls on C?
Ng Chun Pui v Lee Chuen Tat
Mog v Pettman Smith general
Full reasons of barrister
HoL - although Bolam gave scope for difference in medical opinion, judge could still find one to be negligent
Wilsher v Essex Area Health Authority
Blyth v Birmingham Water Works
Reasonable person test for BoD - omission to do something RP would have done, or doing something RP would not have done
What does Lee see the Bolam/Bolitho compromise on defence as showing?
Limiting concept of courts to second-guess medical professionals - medical guidance gives source of ‘reasonableness’ separate from practice
Firemen, special equipment but no trailer
Watt v Hertfordshire CC
Who argued the Learned Hand Formula Should not play a central role in examining fault as it does in the US as English law does not always rely on economic calculations
Lee
What two cases explore emergency as a context influencing whether X was a breach of duty?
Watt v Hertfordshire CC; King v Sussex Ambulance
Why does Mulheron argue Bolitho turned Bolam on its axis?
Made court final arbiter of medical breach, not medical profession
If there is a significant risk which would affect normal person’s judgment, normal responsibility of doctor to inform patient
Pearce v United Bristol Healthcare
Employer need not stop willing employee
Withers v Perry Chain
How did Muleron see Bolitho as introducing asymmetry between litigious challenges facing V and D?
V has to prove doctor’s evidence is illogical, AND that their evidence withstands logical analysis, whilst doctor only has to do the latter
Scott v London and St Katherine Dock
If accident usually avoided in proper course of things, reasonable evidence accident arose for want of care
LJ Buxton in King v Sussex Ambulance
Expressed concern as D had to suffer due to D’s purpose, and would not be the same for private companies
If D professes a special skill, held to professional person with that skill
Maynard v West Midlands Regional Health
Wells v Couper judgment
Standard of amateur carpenter, not professional, but might have been higher depending on nature of task (e.g. not an amateur job like a door knob)
Unknown disability is an allowed characteristic
Mansfield v Weetabix Ltd
Great dane, hector
Whippey v Jones
12 year old, sexually abused, senior priests
Mage v Trustees of the Birmingham Archdiocese of the Roman Catholic Church
Who said RP standard is essentially strict liability for those physically/mentally unable to reach RP standard?
Honore
How does Mulheron argue factors under Bolitho go to more than a matter of credibility?
Close examination needed of why experts advocate certain diagnoses and treatment which has nothing to do with credibility (e.g. weighing risks and benefits)
What judge in Condon v Basi said a higher degree of care is required of a professional player, e.g. footballer
Sir John Donaldson MR
Who said the Learned Hand Formula ensures there is only economically efficient liability?
Posner
Blake v Galloway judgment
Lower standard of care as similar to a game - lower than if V had just been walking by
Thompson v Smith Shiprepairers judgment
Noise considered inescapable part of shipyard life until 1970s
Why does Cane argue liability insurance exists?
Because tort law does not pay attention to the means of the tortfeasor
What does the case of Pearce focus on?
Focused on reasonable patient’s interests instead of doctor
jeweller, ear, infection
Phillips v Whiteley (William) Ltd
CoA found cricket club liable despite Bolton
Miller v Jackson
What case shows precautions can run counter to Cs wishes to protect C?
Coxall v Goodyear GB
Widdowson v Newgate Meat Corp general
Mental disorder, dual carriageway
How can one reconcile Mog v Pettman Smith and Montgomery v Lanarkshire?
See medical cases as unique, separate category for physical injury/damage
Ng Chun Pui v Lee Chuen Tat judgment
Burden ALWAYS falls on C (res ipsa loquitur)
What does Lee argue about the hierarchy between tort and regulation?
No simple hierarchy
What does Atiyah believe about res ipsa loquitur?
Represents distinct rule of law, allowing burden to fall on D
What judge in The Wagon Mound (No.2) rejected Bolton means always justifiable to neglect risk of small magnitude?
Lord Reid
Narrow platform 6” higher
Chipchase v British Titan Products
Medical Innovation Bill 2015 was proposed by who?
Lord Saatchi
What does Cane call the requirement of fault in BoD?
‘magic talisman’ - once established ‘all shall be given to the injured party’
Shakoor v Situ judgment
Not assessed by orthodox medicine standards, but also not enough to show degree of skill appropriate to his art because (1) holds himself out as competent, (2) duty to ensure remedy not harmful and (3) satisfy himself no adverse report on medical journals
What judge came up with the Learned Hand formula?
Learned Hand J
Mage v Trustees of the Birmingham Archdiocese of the Roman Catholic Church judgment
Applied historic standards of 1974 to find not negligent as institutional sexual abuse was not regarded as widespread at the time
Chipchase v British Titan Products judgment
CoA said irrelevant if you could show a standard almost applies to an activity
Condon v Basi judgment
Modify standard according to status of sporting activity
Learner driver
Nettleship v Weston
Conveyancing solicitors
Edward Wong Finance v Johnson Stokes
‘Logical basis’ may not apply to high-risk transactions as ‘not readily analysed in terms of logic’
Paratus AMC v Countrywide Surveyors
In what case did the HoL put a ‘gloss’ on Bolam?
Bolitho v City and Hackney Health Authority
Paris v Stepney BC judgment
Unanimous that gravity is a relevant consideration, but majority highlight how needed to take account of Vs personal situation and how grave it would be to them in particular
What difficulty does Cane find with omission and morality?
Hard to equate legal liability with moral fault in the case of omission
Name two cases which applied Bolitho to category of question of resources and conflicts of duty
Garcia v St Mary’s NHS Trust; DA v North East London Strategic HA
Law doesn’t require PERFECTION - just reasonableness, so exercise of clinical judgment need not reduce risk to 0
Garcia v St Mary’s NHS Trust
What system does Cane suggest to deal with the fact fault principle pays little attention to conduct/needs of V?
‘Fault system’ based on fault of injured person alone, as current system ignores Vs needs, just as it ignores D financial capacity
Tomlinson v Congleton BC judgment
Hoffmann highlighted costs of compensation culture are both pecuniary AND general undermining of personal autonomy; Scott said deprivation of liberty would result in a ‘great and dull safety regime’
Paratus AMC v Countrywide Surveyors judgment
‘Logical basis’ may not apply to high-risk transactions as ‘not readily analysed in terms of logic’
What case under sport suggested nature of activity influences ‘reasonable care’?
Woolridge v Sumner
Latimer v AEC judgment
Take into account financial consequences
Mage v Trustees of the Birmingham Archdiocese of the Roman Catholic Church general
12 year old, sexually abused, senior priests
Disinfectant and anaesthetic glass vials
Roe v Minister of Health
What difficulty does Cane find with empirical evidence and morality on fault principle?
Thinking someone is morally responsible is neither necessary nor sufficient for thinking person should pay compensation - not based on popular conception, but, e.g. injured workers likely to think their employer should pay, even w/o fault
What case does the judgment in Mog v Pettman Smith conflict with?
Montgomery v Lanarkshire Health Board
Pregnant, diabetic and short
Montgomery v Lanarkshire Health Board
Employee secondary exposure to asbestos
Smith v P & O
George v Eagle Air Services general
Crash landed plane
George v Eagle Air Services judgment
Aircraft do not usually crash so pilot was reasonably expected to explain why it did for res ipsa loquitur
What case gave three possible approaches to test for BoD?
Bolton v Stone
Withers v Perry Chain judgment
Unusual susceptibility to injury through allergy needed to be considered for gravity of harm
Who explained why a particular level of skill could not be taken account of in Nettleship v Weston and what was the reasoning?
LJ Megaw - would require specific reflection of experience which is too difficult
Moran on RP
Personification of reasonable care has caused RP to have more and more of Ds characteristics, as long as ‘normal’, which can be used to justify discrimination
Fleming on Bolam
Bolam test is ‘over protective’ by making doctor’s evidence conclusive on breach
ECT broken bones
Bolam v Friern Hospital Management Committee
Compensation Act 2006 was G response to what?
PERCEIVED compensation culture
Watt v Hertfordshire CC judgment
Purpose was to save people, so take this into account leading to a lower standard of care
Garcia v st Mary’s NHS Trust on weighing costs and benefits
Law doesn’t require PERFECTION - just reasonableness, so exercise of clinical judgment need not reduce risk to 0
Who delivered the dissenting judgment in Paris v Stepney BC?
Simonds and Morton
Malignant insulinoma
Mansfield v Weetabix Ltd
How does Mullin v Richards conflict with Nettleship?
Allowing experience (of life) to be taken into account
What case shows how little precedential value BoD decisions have?
Miller v Jackson
Statutory defence if supplier/producer/manufacturer could not have reasonably avoided the risk due to lack of medical/scientific knowledge at the time
Part 1 of the Consumer Protection Act 1987
Who called Brown LJ’s approach in Coxall v Goodyear GB ‘the nursemaid school of negligence’?
savory v Holland
Nettleship v Weston judgment
Can’t take any particular lack of skill into account
Mullin v Richards general
15 year old schoolgirls, plastic
What judge in what case highlighted costs of compensation culture are both pecuniary AND general undermining of personal autonomy
Hoffmann Tomlinson v Congleton BC
What case suggested bolam places medical profession ‘above the law’?
Hajgato v London Health Association
Particular lack of skill is an excluded characteristics
Nettleship v Weston
What does Lee argue about the Learned Hand Formula?
Should not play a central role in examining fault as it does in the US as English law does not always rely on economic calculations
Morton v William Dixon
Two principles for negligence of employer through fault of omission (per lord Dunedin in Scots Court of Cession)
What argument against fault principle does Cane believe means tort law more concerned with V than criminal?
Bears no relation to degree of fault
Why does Cane believe liability insurance interferes with fault principle?
Relieves faulty person of burden to pay
What case suggested the standard of care is modified according to status of sporting activity (i.e. little league, professional league)
Condon v Basi
Khou v Gunapathy general
Singapore CoA
Martin on RP
‘Reasonableness’ inevitably reflects male perspective because it’s a construct of patriarchal society and thus should be discarded
McCallister v Lewisham and North Southwark HA
Body from Bolitho can be minority
What did the court in Mansfield v Weetabix Ltd say about if D had known about his disability?
RP would have taken precautions/not driven
How to reconcile Phillips v Whiteley (William) Ltd with Nettleship?
Tried to raise standard above ‘normal’ standard to medical equipment, rather than trying to drop it below normal standard (as in Nettleship)
Name at least two cases on sport as being a context which is an influencing factor?
Woolridge v Sumner; Condon v Basi; Smeldon v Whitworth; Blake v Galloway
For what two reasons is it necessary to consider common practice in industrial sphere and rules/regulations of relevant profession when considering need to take precautions?
Shouldn’t expect D to ‘plough a lone furrow’ and to reflect court’s limited expertise
Scott on Bolitho
Applauded it for challenging autonomy of medical profession
Widdowson v Newgate Meat Corp judgment
If neither give evidence, D cannot rebut inference from maxim of res ipsa loquitur
No swimming, dangerous water
Tomlinson v Congleton BC
Smith v P & O judgment
Reasonable employer wouldn’t have known danger to those not directly involved with asbestos in 1971
How do L&O interpret Condon v Basi and why?
Paraphrasing of ordinary standard of negligence, rather than a new standard, or would lead to ‘unnecessary complication’
Bolam applies to any profession requiring a special skill/knowledge/experience
Gold v Haringey Health Authority
What is the case on social utility as an influencing factor?
Tomlinson v Congleton BC
Name at least two cases on likelihood of damage as an influencing factor for BoD
Bolton v Stone; The Wagon Mound; Whippey v Jones
What is the substance of the test in Blyth v Birmingham Water Works?
Normative rather than descriptive test
What three reasons were given for why it is not enough to show degree of skill appropriate to the art of alternative medicine, and in what case?
Shakoor v Situ - (1) holds himself out as competent, (2) duty to ensure remedy not harmful and (3) satisfy himself no adverse report on medical journals
What judge in what case said deprivation of liberty would result in a ‘great and dull safety regime’
Scott Tomlinson v Congleton BC
15 year old schoolgirls, plastic
Mullin v Richards
What did the judgment in Woolridge v Sumner suggest?
Nature of activity influences ‘reasonable care’ - e.g. to win
What two cases does Lee refer to in order to show how tort standard ‘clearly’ goes beyond regulatory standard?
Baker v Quantum Clothing Group; Jeromson
Sidaway v Board of Governors of Bethlem
Bolam applies to question of amount of info a medical practitioner needs to give to patient on risks
How does Lee suggest tort is able to support statute?
Steps in when official enforcement of regulations is weak, but tort court need not conclude regulation has failed before moving beyond it
What academic stated Compensation Act 2006 is ‘notoriously uncertain as to its effect and purpose’
Lee
Name two cases showing excluded characteristics for BoD?
Nettleship v Weston and Barnett v Chelsea and Kensington Hospital
Savory v Holland
brown LJ’s approach in Coxall v Goodyear GB was the ‘nursemaid school of negligence’
Name three relevant statutes on BoD
Compensation Act 2006 section 1; Social Responsibility and Heroism Act 2015; Consumer Protection Act 1987 Part 1
The Wagon Mound (No.2) judgment
Lord Reid rejected that Bolton means always justifiable to neglect risk of small magnitude - foreseeability is always a question of degree
What case does Mullin v Richards conflict with?
Nettleship v Weston
Miller v Jackson general
CoA found cricket club liable despite Bolton
Who applauded Bolitho for challenging autonomy of medical profession?
Scott
what case stated rugby matches are ‘obviously desirable activity’ despite lack of definition on ‘desirable activity’?
Sutton v Syston Rugby Football Club
Shakoor v Situ general
Chinese herbal
What judge gave two principles for negligence of employer through fault of omission and in what case?
Morton v William Dixon Lord Dunedin in Scots Court of Cession
No compliance with voluntary standard regulation was still fine but caution in drawing hard lines between voluntary and mandatory standards
Tesco v Pollard
Brown v Rolls Royce general
Dermatitis, oil machine, barrier cream
