tort: neglience Flashcards
what is negligence?
when someone causes harm of personal injury or property damages
what are the 3 things the claimant has to prove to prove negligence
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
what cases introduced the idea of duty of care?
donahuge v stephenson 1932
what did the donaghuge and stephenson case create and explain it?
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
what case established WHEN someone owes another a duty of care?
caparo industries v dickamnn (1990)
what three stage test was implamented for when a new duty of care is going ot be imposed in court?
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?)
case for forseability
home office v dorset yaucht club
case for proximity
bourhill v young (the pregnant fish wife case)
what is the just and reasonable principle based on?
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)
what are the three ways to establish step 2 of proving negligence
(proving someone owes you a duty)
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)
what is the reasonable person test
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?
elements of establishing a breah:
- 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
special charateristis of the claimant or defednant explained
- 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
is inexperience relevent to establishing a breach?
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
how is the reasonable person different for professional people?
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
what happens in a medical case when their are two schools of medical though against eachother
- 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
what do courts use to get the standard of a reasonable professional person?
- 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
case for medical professional opinons
- 1st case was bolam v freim barnet hosptial
- 2nd case was bolitho v city of hackney heath
case for social utility of the defendants actions
watt v hertfrodshire county council
case for inexpereince
nettleship v western
case for speical charactersits fo the claimant or defednent
mullins v richards
case for risk of harm
bolton v stone
case for state of knoweldge at the time
walker v northumberland council
case for awareness and what was known at the time
bogle v mcdonalds
case for just and reasonable not benefitting society
hill v cheif counstable of west yorkshire
case for proximity
bourhill v young
case for forseeability
home office v dorset yaucht club
what considerations need to be made to establish nervous shock
- 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
what are the two types of nervous shock victims
- primary. and. secondary
who. are primary victims?
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)
who are secondary victims?
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
what. are the 3 requirements for a secondary victim. to make a claim?
- 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
example of a succsessful secondary vicitm. case
mcloughlin. v o’brian
if you are proved to. be. negligent. what harm caused do you have to. pay for in damages
- the physical or psycological harm done by the defendants. actions and any additonal harm caused in the. aftermath
ex. Mchloughlin v O’brien
what 2 parts of causation have to be met for a defendant to be found guilty of a breach?
1) factual causation
2)legal causation
what is factual causation?
- 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
what case is barnett v chelsea an example of
factual causation
what is legal causation?
- 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)
what is the egg shell skull theory?
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’
what does res ipsa loquitus mean?
’ 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)
