Unit 1 : Dispute Solving in Civil Law - Activity one Flashcards
Exam Content
Negligence
Failing to do something that a reasonable person would do
What are the three things that need to be proved for negligence?
- Duty of Care
- Breach of Duty
- Cause of Damage
Tort Law
This area of Law compensates a person who has been injured or whose property is damaged
Route 1 : Existing Statues and Precedents
The courts should consider existing Statues and Precedents which tells us the duty of Care exists
What Duty of Care does the case of Donoghue v Stevenson(1932) show?
Manufacturer - Consumer
What Duty of Care does Barnett v Chelsea and Kensington Hospital show?
Doctor - Patient
What Duty of Care does Nettleship v Weston/Road Traffic Act 1998 show?
Driver - Pedestrian
What Duty of Care does Arthur JS Hall v Simons show?
Lawyer - Client
What Duty of Care does Latimer v AEC Ltd/ Health and Safety Act 1974 show?
Employer - Employee
Route 2 : Reason by Analogy
This is where the Courts try and look for similar cases and establish duty of care because there is no one case which establishes the duty of care between claimant and defendant.
Route 3 : New and Novel situations
This is where the case is completely new and could not satisfy duty of care with route one or route two
Examples of new and novel situations
- Protesters + Civilians
- Artificial Intelligence
- Crypto currency
- Drone technology
How is Route 3 established?
Caparo test
- Was the damage or harm reasonably foreseeable?
- Is there proximity (close) between the claimant and the defendant - this can be established through a relationship, time or place.
- Is it fair, just and reasonable to impose a duty of care?
Kent v Griffiths (2000)
In this case, a pregnant woman who had asthma dialled 999, however the ambulance took too long to arrive, this caused severe damage to D. It was held that the ambulance was liable as it was reasonably foreseeable that the condition of D would have gotten worse.
Mcloughlin v Brian
C’s husband and kids had just been involved in a car accident caused by the negligence of a lorry driver, one of her kids died instantly and the others along with her husband were taken to the hospital. C was told of the accident and saw her family prior to treatment, causing severe shock + depression. She claimed that D owed her a duty of care. It was held that there was sufficient proximity of time between D and C as she saw the aftermath of the incident.
Hill v Chief Constable of west Yorkshire
The Yorkshire ripper had been murdering women. C’s daughter was the 13th victim of the ripper and it was argued that by the time of her death, the police already had more than enough information on the killer, so could arrest him but were negligent in not doing so. The mother claimed the police owed a duty of care to her daughter. It was held that the relationship between the police and relatives of victims of crimes was not close enough for the police to be under a duty of care and that it was not fair, just or reasonable for the police to owe a duty of care.
How to answer Route 1 or Route 2?
In this scenario, there is/is not a duty of care between the D and C established through…..Case :….. Because……..
How to answer Route 3?
To apply, a reasonable person would have foreseen…….Case : Kent v Griffiths. Furthermore, Proximity is established through…….Case : …….. Because……..Lastly, It is fair, reasonable and just to impose a duty of care as……..
Breach of Duty
This will occur if the person wing the duty falls below the standard of behaviour expected from them.
What do you need to establish Breach of Duty?
- Required Standard of Care
- Risk
- Fail to meet the standard of Care
Reasonable man test
D must have acted according to the standard of the ordinary,prudent and reasonable man performing the task in question
What is the required standard of care for a learner?
Same standard as a non-learner, (Nettleship v Weston)
What is the required standard of care for a professional?
It is adjusted to what is reasonable in that profession , (Montogomery)
How does age affect the required standard of care?
It is adjusted based on age, (Orchard v Lee)
How to answer a question for Breach of Care :
In order to prove D has breached their duty of Care, we must first establish the required standard of care. In application to the scenario,
the required standard of care is….
What is Risk?
Are there any risk factors that lower or increase the required standard of care?
What are the risk factors that may affect the required standard of care?
- Size
- Emergency situations
- Special characteristics
- Practical Precautions
Size of the Risk?
The size of the risk may lower/increase the required standard of care
The greater the risk the more D must do to avoid breaching their duty of care, increases required standard of care
The lower the risk, the fewer precautions that need to be taken.
Bolton v Stone
A cricket ball hit a female passer by in the street outside of the cricket ground. There was a 17ft high fence around the ground and the wicket was a long way from the fence. There was also evidence that a cricket ball had only been hit out of the ground 6x in 30 years. The courts held that the cricket club had reached the appropriate standard of care and not broken its duty.
What case do we use when the size of risk is higher?
Haley v London Electricity Board.
What case do we use when the size of risk is lower?
Bolton v Stone
Emergency situations
When D is acting in an emergency situation or for a social benefit, this will lower the required standard of care.
Case for emergency situations?
Watt v Hertforshire County Council.
Special Characteristics
This takes into account any special characteristics of C so that if C has a particular susceptibility to harm which D knows about. D must take extra care to avoid that harm, this increases the required soc.
Case for special characteristics?
Paris v Stephney borough council.
Practical Precautions
Here the courts will assess whether it was relatively easy or unreasonable to take any such precautions and reflect the standard of care owed. The reasonable man only has to take reasonable precautions to avoid risks. There is no expectation that people should go to extraordinary lengths, especially if the risk of harm is minimal. Overall, this decreases the required standard of care.
Case for Practical Precautions?
Latimer v AEC Ltd
What risk factors should you always mention when talking about risk?
Size of risk + practical Precautions
only mention others if they apply to scenario.
Fail to meet standard of care
Did D’s actions fall below the required standard of care and why?
What two issues do we need to consider for Causation?
- Factual Causation
- Legal Causation
Factual Causation
This is satisfied through the ‘but for’ test : The claimant’s damage would not have occurred ‘but for’ the defendant’s breach
How to answer Factual Causation :
‘But for’ D’s Breach, the consequence would not have happened, therefore factual causation is satisfied.
What is the case for Factual Causation?
Barnett v Chelsea and Kensington Hospital
- three night watchmen from a college went to the casualty ward of the hospital at around 5 am on New Year’s complaining about vomiting and stomach pains after drinking tea. The doctor who was on duty refused to see them or examine them and sent them home to go to their own doctors. A few hours later one of the men died from arsenic poisoning.
Held : although the doctor had breached his duty by sending the men home, he was not the cause of the death because even if he had treated them, they would have still died because of how long the arsenic had been in their system before they sought treatment. Therefore, the failure to treat the men was not the factual cause of death
How to answer factual causation?
‘But for’ D’s breach, the consequence would not have happened, therefore factual causation is satisfied (Barnett v Chelsea)
Legal Causation
This is only satisfied if the damage is a foreseeable consequence of the breach of duty and not too remote.
What does ‘Remote’ mean?
Far,Distant,Disconnected
What is the case for Legal Causation if the damage is not foreseeable?
Wagon Mound
- Due to negligence of the defendant, bunkering oil was leaked into the harbour from a tanker . The oil floated on the water across to C’s wharf and mixed with patches of cotton wadding. Nearby the wharf, someone was welding, sparks from the welding ignited the oil soaked cotton wadding and set fire to ships being repaired in the wharf. The oil also caused fouling to the wharf itself.
Held : The fouling of the wharf by the oil was foreseeable and could be claimed for but the fire damage was far too remote and could not be claimed for.
What is the case for legal causation if the damage is foreseeable?
Bradford v Robinson Rentals
- C was sent by his employers on a long journey from Exeter to Bedford in severe winter weathers in a van with no heating. He suffered frostbite as a result and sued for negligence. The employers tried to argue that suffering frostbite in England was so unlikely that his damage was too remote.
Held : as some sort of cold related injury WAS foreseeable in the circumstances it didn’t matter that the injury in question was the rather unusual form of frostbite. The harm was not too remote and the employers were negligent.
