Tort Of Negligence P2 Flashcards
What are the 3 elements required to prove tort of negligence
A legal duty to exercise care
A breach of that duty of care
Loss or damage caused by to c as a result of D’s breach
What is the first thing we need to establish for negligence
Duty of care
What is establishing duty of care
To establish whether there was a legal relationship between C and D
If there is then the first element of negligence is satisfied
Which case established there is no single definite way of assessing Duty of care so the incremental approach should be taken
Robinson V CC of West Yorkshire Police (2018)
What are the 3 steps in the incremental approach (case by case basis)
1) where and existing precedent that the courts must assume a duty exists
2) whether the courts can draw an anologous duty from a case with similar facts
3) whether the case is a novel and the Campari 3 stage test is to be applied
For the first stage of the Incremental approach, which relationships have already been established and name the cases
Doctor-patient (Montgomery V Lanarkshire)
Lawyer-client (Arther JS Hall V Simmons)
Driver-passenger (Nettleship V Westen)
Manufacturer-customer (Donoghue V Stevenson)
Employor-employee (Walker V Northumberland CC)
For the third stage in the incremental approach, what is a novel case
A case that has no existing precedent or similar facts
The situation has never been resolved or heard by the courts before
What case established the Caparo test
Caparo V Dickman (1990)
Which two cases used the Caparo test and give a brief explanation of the facts
Kent V Griffin (2000) - ambulance was late, answering the 999 call assumed duty
Robinson V CC of West Yorkshire (2018) - police owed a duty of care to the public and when conducting a dangerous arrest
What is the second element for negligence
Breach of duty
When is someone in breach of duty
If they have fallen below the expected standard of care in that situation
Which case established what negligence is
Blyth V Birmingham Waterworks Co (1856)
Which case established the definition of negligence
Blyth V Birmingham Waterworks Co (1856)
What is the definition of negligence
The omission to do something that the reasonable person would do, or doing something that the reasonable person would not do
How is D’s act or omission assessed
By the objective test against the reasonable person
How many reasonable persons are there
3
Name the four reasonable persons and there cases
1) Lowered standard -Children and young people (Mullin V Richards)
2) Raised standard - Professional (Bolam) (Montgomery)
3) Objective standard - (Nettleship) (the law does not take into account lack of skill)
After breach of duty has been looked at, what will the courts look at after
Risk factors
How many risk factors are there
5
What is the first risk factor
Foresight of harm
What is foresight of harm
If the risk is unknown then D cannot be in breach of duty. Standard of care is based on what the reasonable man would have foreseen in the circumstance
What case shows the risk factor of foresight of harm
Roe V Minister of health (1954)
What is the second risk of factor
Likelihood of harm
What is involved in the risk factor of likelihood of harm
If the harm was likely to occur, D is expected to take reasonable precautions to minimise the risk. If they don’t they will be in breach of duty
If harm is not likely = no breach in duty
Which case showed there was no breach of duty as likelihood of harm was low and they took all practical precautions
Bolton V Stone (1915)
Why was D negligent in Miller V Jackson (1977)
The likelihood of harm was high as 9 balls went over the fence in 2 years
What is the 3rd risk factor
Reasonable precautions
What is Reasonable precautions - risk factor
If harm is likely then D is expected to take reasonable precautions and minimise the potential risk.
They are not expected to eliminate the risk completely.
If the cost of eliminating the risk is out of proportion to the benefit it produces the failure to act will be regarded as negligent
Why was Latimer V AEC (1952) not liable
There was no duty to close the factory. They had to take responsible precautions to minimise the risk which they did.
What’s the 4th risk factor
Severity of harm
What is involved in severity of harm
If risk of serious injury, because of C’s vulnerability of the nature of D’s activities, D is expected to take greater care.
Not doing so = breach of duty
Which case showed breach of duty. D should have provided as the seriousness of harm to C would have been greater than the experienced by workers with sight in both eyes
Paris v Stepney (1951)
What is the last risk factor
Social utility
What is social utility as a risk factor
Consider D’s activity from social utility - how important D’s actions are to society
D’s actions are important to society = no breach
Why was D not liable in Watt V Hertfordshire County Council (1954) - Social utility
Saving the woman’s life outweighed the need for precautions of the lorry Jack
Which other case is under social utility
Tomlinson v Congleton Bc (2004)
What is the last thing we need to establish for negligence
Negligence caused the loss/ injury
What is Negligence caused the loss/ injury
Must be proved that the loss or damage was suffered as a result of negligent act
What is the first step in negligence caused the loss/ injury
Factual causation
What test is used for factual causation
The ‘but for’ test - to establish whether C would have suffered harm anyway in spite of D’s lack of care
What must there be nothing of for factual causation
No actus interveniens
What is the key case for factual causation and why were they not liable
Barnett v Chelsea Kensington Hospital (1968) - their failure to examine him did not cause his death. He would have died regardless
Why was the case of McWilliams v Arrol (1962) not liable under factual causation
It was reasonable to presume the deceased would not have worn the harness had one been provided - would have suffered the same injuries therefore was no liable
Why was Wilsher v Essex (1988) not liable under factual causation
Couldn’t decide if D caused damage. Could have still happened by other factors
What is the next step after factual causation
Remoteness (legal causation)
What is involved in remoteness
C can only recover damage if the loss or damage isn’t too remote
Only loses that are reasonably foreseeable can be recovered
What is the key case for remoteness
The wagon mound
How many exceptions are they to The Wagon Mound rule
3
What is the first exception to the Wagon Mound rule of remoteness
Where the specific losses that occurred are not foreseeable but the type of category is
Which case shows the first exception to the Wagon Mound rule and what was the ratio
Bradford v Robinson Rentals (1967)
Injuries suffered by the C was of the type of injury to be reasonably foreseen as a consequence of the D’s breach of duty. Albeit the frostbite was to and unusual extent
What is the second exception to the Wagon Mound rule of remoteness
If the loss is foreseeable but the precise manner in which it happens is not
Which case showed the second exception to the Wagon Mound rule of remoteness and what was the ratio
Hughes V Lord Advocate (1963)
It was foreseeable that the boys may suffer a burn from the lamp. The fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable
What is the last exception to the Wagon Mound rule of remoteness
Some types of injury must be foreseeable
Which case showed the last exception to the Wagon Mound rule of remoteness and what was the ratio
Page V Smith (1996)
Some kind of personal injury was foreseeable, physical or psychiatric
What is another exception to the Wagon Mound rule of remoteness outside of the 3 exceptions
The thin skull rule
What is the thin skull rule
You take your victim as you find them
Which two cases are used for the thin skull rule for remoteness and give a brief explanation of the facts for both
Smith V Leech Brain (1962) - cancerous cells under lip triggered due to injury
Corr V IBC Vehicles (2008) - suffered severe head injury from a machine resulting in PTSD and depression leading to suicide
what defence is a full defence to negligence
volenti non-injuria (consent)
what is volenti non-injuria
when C accepts voluntary assumptin of the risk of harm D cannot be liable
what are the 3 things needed for volenti non-injuria to succeed
knowledge of the precise risk involved (must have full understanding)
c must exercise free choice
voluntary acceptance of risk
who does the burden of proof lie with for volenti non-injuria
the defence
why was c not liable in Morris V Murray (1991) under volenti non-injuria
c voluntarily accepted the risk knowing they both had been drinking all day therefore waived all rights to compensation
what is a partial defence for negligence
contributory negligence
what is contributory negligence
when c has contributed to there own negligence
what did the Law Reform Contributory Negligence Act 1945 state
any damages awarded to c can be reduced according to the extent/ level which c contributed
why was contributory negligence applied to Sayers V Halaw Urban District Council (1958)
C did not take risks that were undisproportionate to her situation but did contribute to own negligence as the toilet roller would not sustain her weight
why was contributory negligence applied to Froom V Butcher (1976)
C contributed to own negligence as not wearing a seatbel. Recieved a reduction of damages
what is the most commmon remedy
Award of damages
what is award of damages
payment of money to compensate or injury r damage to property
no aim to pnish d or give c profit
what is the aim of award of damages
to put the c back into the position they would have been, had the negligence not occured
C must minimise any.. by…
any losses he sufferes, by taking reasonable precautions
migitgatin only has to be reasonable…
c does not have to take drastic steps to keep losses to a minimum
how many types of damages are there and what are they
2
special damages
general damages
what are special damages
damages that can be precisely calculated
what does special damages include
medical expenses (physio, cost of precautions and others, gardener while unfit)
what is the other type of damages
general damages
what is general damages
cannot be precisely calculated
what two heading are included in general heading
pecuniary
non-pecuniary
what is general damages - pecuniary
for future financial loss of earnings
why are general pecuniary damages diffcult to asses
there are many varliable suh as possible lifespan of c, earnings
how do you calculate compensation for damages in general pecuniary damages
multiply earnings by number of working years loss is likely to continue
young people it is rarely more than 18 years of age due to effect of capital
what other expensives can c claim for in pecuniary general damages
nurse care and deduction such as disability
how many headings fall under non-pecuniary general damages
4
what is the first heading under non-pecuniary general damages and what does it cover
pain and suffering - how much pain and suffering C experienced
it is subjective
Judicial Studied Board Set a tariff for different type of pain and suffering
if c is unconscious = no awards
what is the second heading under non-pecuniary general damages and what does t cover
loss of amenity - covers c inability to do things he used to enjoy doing
covers hobbies, skills or activities that c used to enjoy
which case shows loss of amenity
West V Shephard (1964)
what are the two types of payment
lump sum payments
structed payments
what are lump sum payments
on off payment where c will be expected to invest this money so that it will last the rest of his life
what happens if the money is spent from lump sum payments
cannot return to court for more
what are structed payments
c recieves an initial payment and then later but payments at regular intervals
