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AQA A-level Law > Tort Of Negligence P2 > Flashcards

Tort Of Negligence P2 Flashcards

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1
Q

What are the 3 elements required to prove tort of negligence

A

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

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2
Q

What is the first thing we need to establish for negligence

A

Duty of care

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3
Q

What is establishing duty of care

A

To establish whether there was a legal relationship between C and D
If there is then the first element of negligence is satisfied

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4
Q

Which case established there is no single definite way of assessing Duty of care so the incremental approach should be taken

A

Robinson V CC of West Yorkshire Police (2018)

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5
Q

What are the 3 steps in the incremental approach (case by case basis)

A

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

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6
Q

For the first stage of the Incremental approach, which relationships have already been established and name the cases

A

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)

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7
Q

For the third stage in the incremental approach, what is a novel case

A

A case that has no existing precedent or similar facts
The situation has never been resolved or heard by the courts before

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8
Q

What case established the Caparo test

A

Caparo V Dickman (1990)

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9
Q

Which two cases used the Caparo test and give a brief explanation of the facts

A

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

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10
Q

What is the second element for negligence

A

Breach of duty

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11
Q

When is someone in breach of duty

A

If they have fallen below the expected standard of care in that situation

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12
Q

Which case established what negligence is

A

Blyth V Birmingham Waterworks Co (1856)

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13
Q

Which case established the definition of negligence

A

Blyth V Birmingham Waterworks Co (1856)

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14
Q

What is the definition of negligence

A

The omission to do something that the reasonable person would do, or doing something that the reasonable person would not do

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15
Q

How is D’s act or omission assessed

A

By the objective test against the reasonable person

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16
Q

How many reasonable persons are there

A

3

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17
Q

Name the four reasonable persons and there cases

A

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)

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18
Q

After breach of duty has been looked at, what will the courts look at after

A

Risk factors

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19
Q

How many risk factors are there

A

5

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20
Q

What is the first risk factor

A

Foresight of harm

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21
Q

What is foresight of harm

A

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

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22
Q

What case shows the risk factor of foresight of harm

A

Roe V Minister of health (1954)

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23
Q

What is the second risk of factor

A

Likelihood of harm

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24
Q

What is involved in the risk factor of likelihood of harm

A

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

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25
Q

Which case showed there was no breach of duty as likelihood of harm was low and they took all practical precautions

A

Bolton V Stone (1915)

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26
Q

Why was D negligent in Miller V Jackson (1977)

A

The likelihood of harm was high as 9 balls went over the fence in 2 years

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27
Q

What is the 3rd risk factor

A

Reasonable precautions

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28
Q

What is Reasonable precautions - risk factor

A

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

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29
Q

Why was Latimer V AEC (1952) not liable

A

There was no duty to close the factory. They had to take responsible precautions to minimise the risk which they did.

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30
Q

What’s the 4th risk factor

A

Severity of harm

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31
Q

What is involved in severity of harm

A

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

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32
Q

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

A

Paris v Stepney (1951)

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33
Q

What is the last risk factor

A

Social utility

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34
Q

What is social utility as a risk factor

A

Consider D’s activity from social utility - how important D’s actions are to society
D’s actions are important to society = no breach

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35
Q

Why was D not liable in Watt V Hertfordshire County Council (1954) - Social utility

A

Saving the woman’s life outweighed the need for precautions of the lorry Jack

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36
Q

Which other case is under social utility

A

Tomlinson v Congleton Bc (2004)

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37
Q

What is the last thing we need to establish for negligence

A

Negligence caused the loss/ injury

38
Q

What is Negligence caused the loss/ injury

A

Must be proved that the loss or damage was suffered as a result of negligent act

39
Q

What is the first step in negligence caused the loss/ injury

A

Factual causation

40
Q

What test is used for factual causation

A

The ‘but for’ test - to establish whether C would have suffered harm anyway in spite of D’s lack of care

41
Q

What must there be nothing of for factual causation

A

No actus interveniens

42
Q

What is the key case for factual causation and why were they not liable

A

Barnett v Chelsea Kensington Hospital (1968) - their failure to examine him did not cause his death. He would have died regardless

43
Q

Why was the case of McWilliams v Arrol (1962) not liable under factual causation

A

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

44
Q

Why was Wilsher v Essex (1988) not liable under factual causation

A

Couldn’t decide if D caused damage. Could have still happened by other factors

45
Q

What is the next step after factual causation

A

Remoteness (legal causation)

46
Q

What is involved in remoteness

A

C can only recover damage if the loss or damage isn’t too remote
Only loses that are reasonably foreseeable can be recovered

47
Q

What is the key case for remoteness

A

The wagon mound

48
Q

How many exceptions are they to The Wagon Mound rule

A

3

49
Q

What is the first exception to the Wagon Mound rule of remoteness

A

Where the specific losses that occurred are not foreseeable but the type of category is

50
Q

Which case shows the first exception to the Wagon Mound rule and what was the ratio

A

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

51
Q

What is the second exception to the Wagon Mound rule of remoteness

A

If the loss is foreseeable but the precise manner in which it happens is not

52
Q

Which case showed the second exception to the Wagon Mound rule of remoteness and what was the ratio

A

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

53
Q

What is the last exception to the Wagon Mound rule of remoteness

A

Some types of injury must be foreseeable

54
Q

Which case showed the last exception to the Wagon Mound rule of remoteness and what was the ratio

A

Page V Smith (1996)
Some kind of personal injury was foreseeable, physical or psychiatric

55
Q

What is another exception to the Wagon Mound rule of remoteness outside of the 3 exceptions

A

The thin skull rule

56
Q

What is the thin skull rule

A

You take your victim as you find them

57
Q

Which two cases are used for the thin skull rule for remoteness and give a brief explanation of the facts for both

A

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

58
Q

what defence is a full defence to negligence

A

volenti non-injuria (consent)

59
Q

what is volenti non-injuria

A

when C accepts voluntary assumptin of the risk of harm D cannot be liable

60
Q

what are the 3 things needed for volenti non-injuria to succeed

A

knowledge of the precise risk involved (must have full understanding)
c must exercise free choice
voluntary acceptance of risk

61
Q

who does the burden of proof lie with for volenti non-injuria

A

the defence

62
Q

why was c not liable in Morris V Murray (1991) under volenti non-injuria

A

c voluntarily accepted the risk knowing they both had been drinking all day therefore waived all rights to compensation

63
Q

what is a partial defence for negligence

A

contributory negligence

64
Q

what is contributory negligence

A

when c has contributed to there own negligence

65
Q

what did the Law Reform Contributory Negligence Act 1945 state

A

any damages awarded to c can be reduced according to the extent/ level which c contributed

66
Q

why was contributory negligence applied to Sayers V Halaw Urban District Council (1958)

A

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

67
Q

why was contributory negligence applied to Froom V Butcher (1976)

A

C contributed to own negligence as not wearing a seatbel. Recieved a reduction of damages

68
Q

what is the most commmon remedy

A

Award of damages

69
Q

what is award of damages

A

payment of money to compensate or injury r damage to property
no aim to pnish d or give c profit

70
Q

what is the aim of award of damages

A

to put the c back into the position they would have been, had the negligence not occured

71
Q

C must minimise any.. by…

A

any losses he sufferes, by taking reasonable precautions

72
Q

migitgatin only has to be reasonable…

A

c does not have to take drastic steps to keep losses to a minimum

73
Q

how many types of damages are there and what are they

A

2
special damages
general damages

74
Q

what are special damages

A

damages that can be precisely calculated

75
Q

what does special damages include

A

medical expenses (physio, cost of precautions and others, gardener while unfit)

76
Q

what is the other type of damages

A

general damages

77
Q

what is general damages

A

cannot be precisely calculated

78
Q

what two heading are included in general heading

A

pecuniary
non-pecuniary

79
Q

what is general damages - pecuniary

A

for future financial loss of earnings

80
Q

why are general pecuniary damages diffcult to asses

A

there are many varliable suh as possible lifespan of c, earnings

81
Q

how do you calculate compensation for damages in general pecuniary damages

A

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

82
Q

what other expensives can c claim for in pecuniary general damages

A

nurse care and deduction such as disability

83
Q

how many headings fall under non-pecuniary general damages

A

4

84
Q

what is the first heading under non-pecuniary general damages and what does it cover

A

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

85
Q

what is the second heading under non-pecuniary general damages and what does t cover

A

loss of amenity - covers c inability to do things he used to enjoy doing
covers hobbies, skills or activities that c used to enjoy

86
Q

which case shows loss of amenity

A

West V Shephard (1964)

87
Q

what are the two types of payment

A

lump sum payments
structed payments

88
Q

what are lump sum payments

A

on off payment where c will be expected to invest this money so that it will last the rest of his life

89
Q

what happens if the money is spent from lump sum payments

A

cannot return to court for more

90
Q

what are structed payments

A

c recieves an initial payment and then later but payments at regular intervals

AQA A-level Law (37 decks)

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