tort: neglience

Question 1

what is negligence?

Answer 1

when someone causes harm of personal injury or property damages

Question 2

what are the 3 things the claimant has to prove to prove negligence

Answer 2

1) establish the claimant is owed a duty of care by the defendant

2)show the defendant has done something to breech that duty of care or fallen below the standard of a reasonable person expected in law

3) the breech has caused the claimant injury or harm

Question 3

what cases introduced the idea of duty of care?

Answer 3

donahuge v stephenson 1932

Question 4

what did the donaghuge and stephenson case create and explain it?

Answer 4

the neighbourhood principle

lord atkinson said in his ratio of the case that
- you must take reasonable care to avoid cats or omssions which you can reasonably forsee that would likely injure your neighbour

this opened the floodgates to many people suing others

Question 5

what case established WHEN someone owes another a duty of care?

Answer 5

caparo industries v dickamnn (1990)

Question 6

what three stage test was implamented for when a new duty of care is going ot be imposed in court?

Answer 6

1) forseability: was the damage to the claimant forseeable

2) proximity: was the relationship betwwen the two parties suficiently close enough (could be physical space or thier relationship)

3) just and reasonable: no longer looking at the facts of the case. is it just for a new duty of care to be imposed (would it serve in the public interest positivley or will it cause harm?)

Question 7

case for forseability

Answer 7

home office v dorset yaucht club

Question 8

case for proximity

Answer 8

bourhill v young (the pregnant fish wife case)

Question 9

what is the just and reasonable principle based on?

Answer 9

public policy consdieration

• will it beenfit society by setting a new judicial precendent or will it open up the floodgates causing havoc in the court room and not overall benefit the public?

ifit wont benefit the publci it wont pass the just and reasomabel test (as seen in the hill v cheif counstable of west yorkshire case)

Question 10

what are the three ways to establish step 2 of proving negligence
(proving someone owes you a duty)

Answer 10

1) statutory duty of care: has there been a statuory law made in parlaiemtn that says x gorup of people owe a duty of care to y (like teachers to students or employers to workers in health and saftey acts

2) is there a common law duty of care: has there been a previous judicial precedent set that someone owes someone else a duty of care

3) when something has not been rulled on before the caparo three stage test is used (proximity, forseeability and just and reasonable test)

Question 11

what is the reasonable person test

Answer 11

in order to establish s if the defednant has breached or fallen below the standard of a reasonable person they use this test:

• would a reasonable perosn have done what the defend-net didi/ or have the actions of the defendent fallen below?

Question 12

elements of establishing a breah:

Answer 12

• awareness and what was known at the time of the act. a reasonable person would not forsee ay injury or damage as a consequence of the action
• what is the risk of harm, if high were there any precaustions take?
• special characterists of the claimant or defendant:
• the social utility of the defendents actions

Question 13

special charateristis of the claimant or defednant explained

Answer 13

• the law sattes that is the claimant has any special characeristis sucha s being vunerble then the defendent must be sown to take more care or precautions for them
• specila charactersits for the defednant are limited they can only be

1) a health issues that was unforseen that causes damage to the claiant (ex taxi driver having a heart attack)

2) age

case: mullins v richards

Question 14

is inexperience relevent to establishing a breach?

Answer 14

no inexpereince is irrelevent

• even if you are a learner driver you are held to the standard of a competant and reasonable driver
• the same with docots jut ebcuase you are nwely qualifies you are stll held to the standards of a reasonable doctor

Question 15

how is the reasonable person different for professional people?

Answer 15

professionals are held to a higher standard and have to reach the reasonable standard of a professional person
- dont have to be the best but have to be at an expected standard

Question 16

what happens in a medical case when their are two schools of medical though against eachother

Answer 16

• if there is a conflict of medical opinion, provided the defendent docot is acting in accordance toa reputable body of though amonght other docotrs they arent in breach even if other docotrs dont agree

after bolitho case the defednant docot has to justify their actions to be cleared of a breach

Question 17

what do courts use to get the standard of a reasonable professional person?

Answer 17

• they get a expert whitness who is an expert int he particlar feild to come in and give their expert opinion of what a reasoable professional in that field would/ should do

Question 18

case for medical professional opinons

Answer 18

• 1st case was bolam v freim barnet hosptial
• 2nd case was bolitho v city of hackney heath

Question 19

case for social utility of the defendants actions

Answer 19

watt v hertfrodshire county council

Question 20

case for inexpereince

Answer 20

nettleship v western

Question 21

case for speical charactersits fo the claimant or defednent

Answer 21

mullins v richards

Question 22

case for risk of harm

Answer 22

bolton v stone

Question 23

case for state of knoweldge at the time

Answer 23

walker v northumberland council

Question 24

case for awareness and what was known at the time

Answer 24

bogle v mcdonalds

Question 25

case for just and reasonable not benefitting society

Answer 25

hill v cheif counstable of west yorkshire

Question 26

case for proximity

Answer 26

bourhill v young

Question 27

case for forseeability

Answer 27

home office v dorset yaucht club

Question 28

what considerations need to be made to establish nervous shock

Answer 28

• law requires claimant to be. clinically. diagnosed with. a mental ilness induced by the harm of the claimant to prevent frauduleent claims
• has to bee a lift changing injury: ptsd, clinical d epression, OCD or. anxiety neurosis

Question 29

what are the two types of nervous shock victims

Answer 29

• primary. and. secondary

Question 30

who. are primary victims?

Answer 30

those who are directly injured in the. even. caused by the defendant. suffering a mental and Phsycological injury
- or even. if they arent physically harmed but they could have been and have. nervous shock. this also counts

• to prove need to show breach and causation

(page v smith)

Question 31

who are secondary victims?

Answer 31

those. not put in physical danger but suffer a mental injury. as a result of whitnessing it

you cannot sue somone for seeing. something that is psycologically damaging (bourhill and. young case) as they are. expected to be able to. overcome distress of. being a whitness

Question 32

what. are the 3 requirements for a secondary victim. to make a claim?

Answer 32

• 1). have psycological. injury disagnosed as the result of a shoking event.
  -2). claimant must have a relationship or close ties of. lover. and affection. to. the primary victim of. the. case
  3) the proximity to the shocking incident or immediate aftermath. need to have expereinces it. through your own senses rather than. through. the media

Question 33

example of a succsessful secondary vicitm. case

Answer 33

mcloughlin. v o’brian

Question 34

if you are proved to. be. negligent. what harm caused do you have to. pay for in damages

Answer 34

• the physical or psycological harm done by the defendants. actions and any additonal harm caused in the. aftermath

ex. Mchloughlin v O’brien

Question 35

what 2 parts of causation have to be met for a defendant to be found guilty of a breach?

Answer 35

1) factual causation

2)legal causation

Question 36

what is factual causation?

Answer 36

• straight forward matter of fact question is asked:
  ‘ the but for test’

-would the claimant have incurred the damage but for the defendant’s negligence

Question 37

what case is barnett v chelsea an example of

Answer 37

factual causation

Question 38

what is legal causation?

Answer 38

• about the remoteness of damagee
  -for a claimant to succeed in finding libaility the courts have to be satisifed that the damage was reasonably forseable.
• if it is too for removed the breach isnt recoverable

(wagon mound case)

Question 39

what is the egg shell skull theory?

Answer 39

in a case the unexpected fragility of the injured person is not a valid defense to the seriousness of any injury casued to them

ex. in page v smith. smith tried to argue that page already had ME so the damage was not forseeable. However the court argued you ‘must take your victim as you find them’

Question 40

what does res ipsa loquitus mean?

Answer 40

’ the thing speaks for itself’

when a court can infer negligence when it is hard to prove causation but it is clear from the nature of the incident that there is clear negligence (the thing speaks for itself)