Week 7 Flashcards
What’s a tort?
A type of civil wrong. A breach of legal duty or infringement of a legal right.
Examples are trespass, slander, libel, defamation or nuisance.
What’s a difference between tort and contract?
Usually in torts the parties have never met or agreed that they owe each other a legal duty
In both claimant can choose appropriate remedy in event of breach
What’s negligence?
A breach of the legal duty to take care which results in the damage to another.
3 elements of negligence
1 A duty of care was owed to them
2 The defendant breached that duty
3 Because of the breach the damage was caused
Explain the Donoghue V Stevenson case.
Donoghue went to a cafe and her friend bought her a ginger beer bottle and at the bottom was a decomposed snail and she became ill as a result.
Since there was no contract she couldn’t really do anything.
How did the Donoghue VS Stevenson case progress?
Donoghue sued the manufacturer.
All manufacturers are owed a duty of care to their end consumer.
This is the Neighbour Principle.
What is the Duty of Care in negligence?
The duty to take care and not cause foreseeable harm to a foreseeable victim.
Tell me about the Bourhill VS Young case
Bourhill was pregnant and heard a collision which led to her miscarriage. She sued the estate of the dead motorcyclist.
Bourhill wasn’t a foreseeable victim as she didn’t see the event first-hand and only those who were immediately at the scene were owned a duty of care.
Explain the Alcock VS Chief Constable of South Yorkshire Police
97 people died and many were severely injured due to poor policing.
The case concerned whether a duty of care was owed to relatives or friends who saw the event in the stadium or on TV and who suffered psychiatric injury.
Alcock VS Chief Constable of South Yorkshire Police
What was the criteria for duty of care given to secondary victims?
1 Sufficiently proximate relationship between the Claimant and those injured
2 Closeness of the Claimant to the accident or its aftermath in terms of time and space
3 Nervous shock must have been suffered as a result of seeing or hearing the accident or its immediate aftermath.
What’re the 2 of the 4 tests judges used for testing duty of care based on the based on the Nicholas H case (1991)
1 Was the damage reasonably foreseeable by the defendant at the time of the act or omission?
2 Is there a neighbourhood principle or sufficient proximity between the parties?
3 Should the law impose a duty of care between the parties i.e. is it fair and reasonable to do so?
4 Is there a matter of public policy which exists or requires that no duty of care should exist?
What’s the Burden of Proof?
Claimant must prove the defendant acted carelessly… e.g. explaining the facts, and calling for witnesses etc.
What’s “res ipsa loquitur” principle?
The facts speak for themselves.
What is the required standard of care based upon?
It is based upon that of a reasonable person - would a reasonable person would’ve done that?
What is considered reasonable for a “reasonable person” ?
The ordinary person on the street, not expected to be skilled in any particular trade or profession.
When is the standard of care supposed to be higher?
When there is a greater risk of injury or where the claimant is more vulnerable (children or disabled)
Name one example where standard of care was higher
- Glasgow Corporation V Taylor (1922) - 7yr old boy ate poisonous berries in a park
- Hayley V London Electrical Board (1965) - Blind man fell down a hole
Does a lack of training or expertise reduce the standard of care?
NO
Name 2 other factors which affect the standard of care
Think CP CP
- Cost and Practicality - Latimer VS AEC Ltd (1952) - Factory flood and used sawdust to cover up and still someone fell
- Common Practice - Paris V Stepney BC (1951) - One-eyed man allowed to work in a garage without safety goggles
