Tort Law - Introduction to Negligence Flashcards
What are the requirements for negligence?
D owed a duty of care to the ‘foreseeable victim’, the care was breached, C suffered relevant damage, the breach caused the damage and a test of proximity
Grant v Australian Knitting Mills judgment
Donoghue applies further than just sealed products in opaque containers - did product reach V with the same defect as when it left the manufacturer?
Griffiths v Arch Engineering judgment
Still DoC even if there was reasonable possibility of inspection by a 3rd party
Stennet v Hancock general
‘By-blow’ victim
Stennet v Hancock judgment
Duty owed even to a ‘by-blow’ victim, not just consumer
‘By-blow’ victim
Stennet v Hancock
Palsgraf v Long Island Railway general
Fireworks, train, scales
Fireworks, train, scales
Palsgraf v Long Island Railway
Palsgraf v Long Island Railway judgment
Not foresseable victim - irrelevant if guards may have owed a DoC to others around
Hay v Young general
Pregnant, HEARD collision, stillborn
Hay v Young judgment
Not foreseeable victim
What do L&O argue about Hay v Young?
Court used foreseeability to cover influence of policy - shock-induced damage was problematic then
Pregnant, heard collision, stillborn
Hay v Young
Haley v London Electricity Board general
Blind man, excavation
Haley v London Electricity Board judgment
DoC to ensure safety of all persons reasonably foreseeable, including the blind and infirm
L&O on Haley v London Electricity Board
Difficult to reconcile with Hay - are pregnant people less encountered? Could show gender bias in tort (Mitchell)
Congenital Disabilities (Civil Liability) Act 1976
P created ‘foreseeable victim’ - child cannot bring claim against mother for tortious conduct relating to driving
What Act showed P creating a ‘foreseeable victim’?
Congenital Disabilities (Civil Liability) Act 1976
Grant v Australian Knitting Mills on breach of DoC
Malleability of fault concept, as applied even though manufacturer had done all that could be reasonably expected
Rothwell v Chemical & Insulating general
Pleural placques
Rothwell v Chemical & Insulating judgment
Need to be ‘worse off’ and change cannot be trivial
Why was the case of Rothwell v Chemical exceptional?
Courts had to consider if the injury constituted legal harm, rather than just being about proof
What judge in what case suggested that for damage in negligence, C needs to be ‘worse off’ and change cannot be trivial?
Lord Hoffman in Rothwell v Chemical & Insulating
Evans v Triplex Safety Glass general
Windscreen, shards
Evans v Triplex Safety Glass judgment
No evidence that D’s negligence, present or not, caused the disintegration as opposed to other causes
Windscreen, shards
Evans v Triplex Safety Glass
What case explores if D’s conduct CAUSED C’s injury?
Evans v Triplex Safety Glass
What kind of test is applied when looking at causation in negligence?
But for factual cause
Burrows v March general
Defective pipe, gas fitter
What case explores the application of the test of proximity in negligence?
Burrows v March
Burrows v March judgment
Loss resulted from 3rd party recklessness directly, so no liability
D v East Berkshire Community Health NHS Trust, Lord Rodger
‘the world is full of harm for which the law furnishes no remedy’
What judge in what case said that ‘the world is full of harm for which the law furnishes no remedy’?
D v East Berkshire Community Health NHS Trust, per Lord Rodger
What quote in what case and by what judge shows that if there is no DoC, there is no action in negligence?
‘the world is full of harm for which the law furnishes no remedy’ - D v East Berkshire Community Health NHS Trust, per Lord Rodger
Who was the first academic to recognise a duty of care, and when?
Francis Buller in the middle of the 18th century
From what theorists did Buller borrow the idea of DoC?
Natural Law School
Natural Law School theory
Concern with what duties/obligations are owed as a result of being a member of society
What school of thought is concerned with what duties/obligations are owed as a result of being a member of society
Natural Law School
Winterbottom v Wright general
Drove coach for postmaster, hired from D, collapsed
Winterbottom v Wright judgment
Enforced privity ‘lest the most absurd and outrageous consequences’ ensued
What case showed the early development of negligence, enforcing privity ‘lest the most absurd and outrageous consequences’ ensued?
Winterbottom v Wright
Longmeid v Holliday
Exception to Winterbottom in regard to articles ‘dangerous in themselves’
What case gave an exception to Winterbottom?
Longmeid v Holliday
Exception to Winterbottom in regard to articles ‘dangerous in themselves’
Longmeid v Holliday
When was the first normative explanation of DoC in courts, and by who?
Heaven v Pender per Brett MR
Brett MR in Heaven v Pender
‘Neglect of the use of ordinary skill or care towards a person to whom D owes the duty’
What judge and in what case described a DoC (early on) as ‘Neglect of the use of ordinary skill or care towards a person to whom D owes the duty’?
Brett MR in Heaven v Pender
What was the outcome in Heaven v Pender?
Other judges rejected the argument of Brett MR on DoC
Le Lievre v Gould general
Brett MR tried to resuscitate DoC by suggesting only arises with physical proximity
What case showed Brett MR tried to resuscitate DoC by suggesting only arises with physical proximity?
Le Lievre v Gould
When did the courts finally expand and adopt Le Lievre?
1930s in Donoghue v Stevenson
How was Le Lievre adopted and expanded in Donoghue?
Into notions of closeness and proximity
Donoghue v Stevenson
Decomposing snail
What was the ratio in Donoghue v Stevenson in HoL, and on what point?
3:2 majority rejected privity of contract fallacy
How was the DoC defined in Donoghue?
Owed to persons who ought reasonably to have been in D’s contemplation
How did the court distinguish from Winterbottom in Donoghue?
Said Winterbottom claim was founded on D’s BoC with 3rd party, not independent tortious duty
Who in the minority in Donoghue focused on the floodgates argument?
Lord Buckmaster
When has Lord Buckmaster’s floodgates argument in Donoghue been most persuasive?
In cases concerning pure economic loss
What did Lord Buckmaster argue in Donoghue?
The DoC principle has never succeeded in court, so how can it exist as the majority claim?
What moral principle did Lord Atkin inject in Donoghue?
‘Good neighbourliness’
Who offered a ‘case by case’ analysis test, more pragmatic than Lord Atkin’s, in Donoghue?
Lord Macmillan
Who said ‘there must be, and is, some general conception of relations giving rise to a DoC’, and in what case?
Lord Atkin
what did Lord Atkin look to in order to establish a DoC?
‘General public sentiment’
How did Macmillan explain Longmeid in Donoghue?
Longmeid is not an exception but a stringent degree of diligence to ensure safety
Why did Macmillan believe manufacturers have a DoC to consumers?
Because they produce goods for human consumption, and are thus aware of the end result
What was the primary difference between Macmillan’s first and second draft?
Widened to focus on English law as opposed to Scottish in second draft
what did Lord Tomlin argue in Donoghue?
No material from which to draw Atkin’s principle, and similar principle was rejected in Winterbottom
Was Lord Tomlin in the majority or minority in Donoghue?
Minority
Lawson (academic) on Donoghue and DoC test
Focus on who you DON’T have a DoC to
What academic highlighted that sometimes you can cause loss to others , e.g. competing businesses, and thus better to focus on who you don’t owe a DoC to?
Lawson
Fleming on Donoghue?
DoC is a control device to limit an otherwise vast scope of liability
Who saw DoC as a control device to limit an otherwise vast scope of liability?
Fleming
Grant v Australia Knitting Mills general
Long johns, rash
Weir on Grant v Australia Knitting Mills
Rate of failure was so low that manufacturer should have got a prize, not a finding of negligence
Who argued Rate of failure was so low in Grant that manufacturer should have got a prize, not a finding of negligence?
Weir
What case seems to suggest negligence isn’t really fault-based, due to super low rate of failure still leading to negligence claim?
Grant v Australia Knitting Mills
Hedley Byrne v Heller
Donoghue does not apply to purely financial loss
Donoghue does not apply to purely financial loss
Hedley Byrne v Heller
What two cases show general development of Donoghue principles?
Hedley Byrne v Heller; Home Office v Dorset Yacht Co Ltd
Home Office v Dorset Yacht Co Ltd general
Character forming
Home Office v Dorset Yacht Co Ltd judgment
Cannot always just apply Donoghue - endorsed Atkin’s speech as a ‘statement of principle’, not statutory definition, and incrementalist approach to DoC
What case stated that Donoghue should apply unless there is a justification for its exclusion?
Home Office v Dorset Yacht
What case endorsed Atkin’s speech in Donoghue as a ‘statement of principle’, not a statutory definition?
Home Office v Dorset Yacht
Anns v Merton LBC general
Two-stage test of negligence
What is the test from Anns v Merton LBS very similar to?
Academic writings by Fleming and Lawson
Anns v Merton LBC two-stage test
Should D have had C in contemplation, and D has an opportunity to show policy reasons for no DoC
In what case was Anns v Merton LBC overruled?
Murphy v Brentwood District Council
Murphy v Brentwood District Council judgment
Overruled Anns v Merton LBC two-stage test
What test came after Anns v Merton LBC?
Three stage test in Caparo Industries v Dickman
What judge gave the three stage test in Caparo v Dickman?
Lord Bridge
what is the 3 stage test in Caparo?
Reasonably foreseeable C would suffer as a result of D’s act, relationship of proximity and fair, just and reasonable to recognise DoC
How can the test from Caparo be criticised?
Tempting to say D ought to have had C in contemplation when we know C has suffered harm
Who argued that proximity in Caparo, despite being under its own heading, was not a separate ingredient, and in what case?
Lord Nicholls in Stovin v Wise
Stovin v Wise
Proximity in Caparo, despite being under its own heading, was not a separate ingredient - just another way of testing fair just and reasonable
Hill v Chief Constable of West Yorkshire general
Sutcliffe, last victim
Hill v Chief Constable of West Yorkshire judgment
No prior relationship to satisfy proximity test under Caparo
Hickman on proximity test
‘Underpinned by policy considerations’
Who argued the proximity test is ‘underpinned by policy considerations’?
Hickman
How do L&O describe the fair just and reasonable test?
‘General repository for a miscellaneous set of policy arguments, undefined in nature and unlimited in number’
Who called the fair just and reasonable test a ‘General repository for a miscellaneous set of policy arguments, undefined in nature and unlimited in number’?
L&O
What does Beever argue about the fair just and reasonable test?
If courts keep making such policy choices, as L&O suggest, legislature should take control and replace common law with statute on negligence
Who suggested that If courts keep making such policy choices, as L&O suggest, legislature should take control and replace common law with statute on negligence?
Beever
XA v YA general
Violent father, FIRST INSTANCE
XA v YA judgment
No DoC as would have required Mum to break up family, likely to be abused herself and how can courts work out best interests of child 30/40 years ago
What is an example of the courts searching for extent of DoC from parent to child?
XA v YA
McFarlane v Tayside Health Board general
Vasectomy, child
McFarlane v Tayside Health Board judgment
HoL allowed claim for distress of pregnancy and childbirth, ut not for upbringing
What judge in what case shows explicitly how a judge’s sense of morality shapes the law in negligence?
McFarlane v Tayside Health Board, Lord Steyn
Lord Steyn in McFarlane v Tayside Health Board
Considers distributive justice, and how ordinary people would not expect such a claim to be allowed given the amount of people who can’t have children at all
What judge in McFarlane explored distributive justice?
McFarlane v Tayside Health Board
Parkinson v St James and Seacroft University Hospital
Could claim for additional costs of raising disabled child, but not general costs
What case showed courts will allow claim for additional costs of raising a disabled child, but still to McFarlane on general costs?
Parkinson v St James and Seacroft University Hospital
Cattanach v Melchior
Shows HC in Australia struggling on parents’ claim for unintended children - split 4:3 in favour of costs for child
What case shows other courts struggle with parents’ claim for unintended children?
Cattanach v Melchior, HC in Australia split 4:3
What was the consequence of Cattanach v Melchior in Australia?
Many states legislatively reversed the result
Mulcahy v MoD general
Infront of gun, hearing
Mulcahy v MoD judgment
No DoC as highly detrimental to battlefield operations
Infront of gun, hearing
Mulcahy v MoD
Smith v MoD general
Blown up by roadside bombs or friendly fire - equipped
Smith v MoD judgment
SC decided test needed to be decided in a further case as involved policy considerations inappropriate for court to adjudicate on
What did the minority think in Smith v MoD?
No DoC after application of Caparo test
Blown up by roadside bombs or friendly fire
Smith v MoD
What case shows the SC being extremely deferential to executive due to policy considerations required in application of Caparo test?
smith v MoD
What two cases explore application of fair just and reasonable test in soldiers injured in combat?
Smith v MoD; Mulcahy v MoD
What two cases explore application of fair just and reasonable test in parents’ claim for unintended children?
McFarlane v Tayside Health Board; Parkinson v St James and Seacroft University
What two cases explore application of fair just and reasonable test in police duty to victims of crime?
Hill v Chief Constable of West Yorkshire; Osman v UK
Osman v UK general
Teacher obsessed with boy, reported, shot father
Hill v Chief Constable of West Yorkshire on fair just and reasonable test
No because duty would not improve standard of police, and may even lead to detrimentally defensive frame of mind
What case rejected application of fair just and reasonable test because may lead to detrimentally defensive frame of mind?
Hill v Chief Constable of West Yorkshire
Why did the court say no to FJR test in Osman?
Same general principles as in Hill
What happened in ECtHR in Osman?
Violation of Article 6 through use of strike out decision as immunity of police needed to be applied proportionally
How can Hill be circumvented under HRA?
Breach of section 6 - Article 2 requires police to take positive action if ‘real and immediate risk’
What argument went to the ECtHR in Osman?
Strike out decision
Von Colle v Chief Constable of Hertfordshire judgment
No breach of Article 2
Von Colle v Chief Constable of Hertfordshire general
Murder of prosecution witness by defendant
Savage v South Essex Partnership
Positive obligation under Article 2 can extend to self-harm
Murder of prosecution witness by defendant
Von Colle v Chief Constable of Hertfordshire
Positive obligation under Article 2 can extend to self-harm
Savage v South Essex Partnership
Z v UK
Osman misunderstood DoC test; didn’t need to be proportionate as not immunity, so could apply strike out
What case showed ECtHR admitting Osman misunderstood DoC test?
Z v UK
Smith v Sussex Police general
Homosexual ex, messages, injured after report
Smith v Sussex Police judgment
Majority in HoL said no DoC, applying Hill and Brooks
Lord Bingham in Smith v Sussex Police
Tried to create new ‘liability principle’, creating DoC when C gives D apparently credible evidence that 3rd party presents a specific and imminent threat to C
What principle was attempted to be created in Smith v Sussex Police, and by who?
Lord Bingham, liability principle
Nolan on liability principle of Bingham from Smith v Sussex Police
‘Imminent’ is too uncertain and overly fact-dependent test
Lord Brown in Smith v Sussex Police
Concern over distortion of police performance by finding DoC, causing neglect in non-DoC areas
What judge in Smith showed concern over distortion of police performance by finding DoC?
Lord Brown
burton on Smith v Sussex Police’
‘licence for the police to continue to fail victims of crime generally and victims of domestic violence in particular’
Who said that Smith v Sussex Police gives a ‘licence for the police to continue to fail victims of crime generally and victims of domestic violence in particular’?
Burton
L&O on Burton’s criticism of Smith v Sussex
No blanket immunity and may still owe DoC if police have assumed a responsibility
Michael v Chief Constable of South Wales general
Violent ex-bf, phone with 60, dead in 15
Michael v Chief Constable of South Wales judgment
Hill principles still apply - SC emphasised that here there was a failure to act, where it is harder to prove there is a DoC
What case showed the SC emphasising a failure to act, and suggesting it is harder to prove a DoC in such circumstances?
Michael v Chief Constable of South Wales
Lord Kerr’s dissent in Michael v Chief Constable of SW
Test is based on judicial intuition so should be more responsive to contemporary perceptions
Who argued in what case that FJR test is based on judicial intuition so should be more responsive to contemporary perceptions?
Michael v Chief Constable of SW, per Lord Kerr
Brooks v Commissioner of Police for the Metropolis general
Friend of Stephen Lawrence, mental illness
Brooks v Commissioner of Police for the Metropolis judgment
DoC not owed - anxiety over Osman decision despite Z v UK, but still reaffirming central holding in Hill
What case shows the HoL experiencing anxiety after Osman decision on proportionality?
Brooks v Commissioner of Police for the Metropolis
Through what section does the HRA have horizontal effect?
Section 6 - courts make decisions compatible with Convention
How is there vertical effect through HRA?
Imposes obligations directly on public authorities through section 6
LJ Arden on development of common law and Convention
Development only when ‘appropriate for domestic law reasons’
Who said common law only develops in line with Convention when ‘appropriate for domestic law reasons’?
LJ Arden
Smith v Chief Constable of Sussex on common law and ECHR
HoL believe two could exist in parallel, rather than extending former to remedy a breach of the convention
What two reasons were given in Smith v Chief Constable for common law and ECHR existing in parallel?
Osman test is more stringent than negligence, and the two serve different purposes
What judge in Smith v Chief Constable said common law and ECHR serve different purposes?
Lord Brown
Why does it matter that Osman test is more stringent than negligence, according to Smith v Chief Constable?
If CL were extended to remedy Convention, it would expand liability further for Convention rights than recognised by ECHR
What did Lord Brown in Smith v Chief Constable believe the purpose of HRA is?
Vindicate rights
What did Lord Brown in Smith v Chief Constable believe the purpose of common law tort is?
To compensate
What academic argues private law duties like a DoC can only be correlative to a right possessed by C?
Stevens
What is the rights-based approach to negligence?
private law duties like a DoC can only be correlative to a right possessed by C
what approach to negligence does Stevens advocate?
Rights-based approach
What judge in what case supported a change in emphasis in DoC from consideration of a duty to consideration of breach?
Lord Bingham in D v East Berkshire Community
What argument of Bingham’s was rejected by the majority in D v East Berkshire Community?
Change in emphasis in DoC from consideration of duty to consideration of breach
Who believes Macmillan’s first draft would have been given as the final speech had the date of delivery of the judgment not been pushed back?
Lord Alan Rodger
Who would Macmillan’s first draft in Donoghue have appealed to and why?
Scottish academics who believe judges concentrate too much on English authority
Why does Lord Rodger believe Macmillan and Atkin both refer to the American case of MacPherson?
Academic influence - Boehlen’s article, led to the article by Goodhart
What author does Lord Rodger believe wrote an article that introduced Macmillan and Atkin to the American case of Macpherson in Donoghue?
Boehlen
Who else does Lord Rodger believe Atkin convinced to change emphasis from Scottish to English law in Donoghue?
Lord Thankerton
What argument of Denning’s does Lord Rodger reject?
Atkin persuaded them to reach the result - only persuaded them to apply the result to English law too
what does Denning argue about the judgments of Lord Thankerton and Macmillan in Donoghue?
Atkin persuaded them to reach the result they did, rather than just persuading them to change emphasis from Scottish to English law
Who called the three majority judges in Donoghue ‘the celtic majority’
Lord Alan Rodger
How did Lord Alan Rodger describe the majority judges in Donoghue?
‘the celtic majority’
What academic highlights convergence of negligence and human rights law is undesirable because they perform different functions?
Nolan
What two arguments for convergence does Nolan argue against ?
Functional equivalence argument and fundamental rights argument
What is the functional equivalence argument on convergence?
Human rights and negligence perform the same functions
What is the fundamental rights argument on convergence?
Human rights are more fundamental than tort law
What academic argues there is ‘no need to introduce major changes into tort law’ because it can exist in parallel with HRA?
Jones
What argument in Smith v Chief Constable of Sussex does Nolan reject?
Functional separation argument, saying Convention vindicates rights and tort compensates
How does Nolan argue against the functional equivalence argument, whilst still rejecting the functional separation argument in Smith?
He sees Convention as giving a right good against the state, and tort (private law) as giving a right good against all
Lord Bingham in R (Greenfield) v SoS for the HD
HRA is not a ‘tort statute’ and it has ‘different and broader objects’
What judge in what case supported Nolan’s argument against functional equivalence, and how?
Bingham in R (Greenfield) v SoS for the HD - HRA is not a ‘tort statute’ and has ‘different and broader objects’
What two general points does Nolan give to argue against functional equivalence of Convention and negligence?
Different limitation periods and alien public law concepts like proportionality
What does Nolan argue about the fundamental rights argument of Convention?
Private law rights could be argued to be more fundamental as they are universal and have a longer history
Who thought private law rights could actually be argued to be more fundamental than private law because universal and longer history
Nolan
What fundamental basis of the law of negligence does Nolan believe convergence with Convention would undermine?
Distinction between acts and omissions
Gorringe v Calderdale
Public authority not liable in negligence for failing to confer a benefit unless private party would also be liable
What authority does Nolan believe would need to be overruled to allow convergence with Convention in negligence?
Gorringe v Calderdale, to remove distinction between acts and omissions
What does Nolan argue about the difference in the fault test between negligence and Convention?
Positive obligation under Article 2 and 3 is similar to negligence, but maybe more difficult under Convention (Lord Phillips in Savage)
What judge in what case suggested standard of reasonableness under Osman (Convention) is ‘much more stringent’ than under negligence?
Lord Phillips in Savage
What three core distinctions does Nolan point to in Article 8 between Convention and negligence?
Puts burden on state to justify intervention, ‘necessity’ does not mean reasonable but pressing social need and significance attached to procedural failure where they may not be in tort
Handyside v UK
Article 8 ‘necessity’ means pressing social need, not reasonable
Lord Brown in Van Colle on causation under the Convention
‘Looser approach’
What judge in what case saw causation under the Convention to be a ‘looser approach’ than in negligence?
Lord Brown in Van Colle
How does Nolan describe the difference in causation test under Convention and tort?
Negligence is a ‘but for’ test, but Convention needs reasonable measures ‘could have had a real prospect of altering the outcome’
What does Nolan believe about the difference in the scope of protection under Convention and negligence?
‘Victim’ under Convention is broad and flexible, but not always mirrored in negligence
What case does Nolan point to in order to show that the scope of protection under Convention can be a lot broader than in negligence?
In Savage the daughter would have lacked standing in negligence as not considered a ‘victim’
