tort flashcards

what are the elements of a negligence claim?

duty of care, breach of duty, factual cassation, legal causation/remoteness, defences

Who is responsible for the burden of proof and on what balance?

claimant is responsible on the ‘balance of probabilities’ (over 50%)

What was the key principle in Donoghue v Stevenson (1932)

the neighbour principle - if a neighbour is someone closely and directly affected by an act, you ought to have them in contemplation

What test occurred from Anns v Merton (1978)?

two stage test - whether the harm to C was foreseeable and should a duty of care be excluded or public policy reasons (filter to remove constraints)

What test occurred from Caparo v Dickman (1990)?

three ingredients test - foreseeability, proximity and fair, just and reasonable'

What case highlighted that the public authorities owe a duty of care for personal injury?

Robinson v CC of West Yorkshire (2018)

What types of harm are covered by duty of care?

physical harm, psychiatric harm, recoverable and non-recoverable economic loss

What type of economic loss can be recovered under the law of negligence?

consequential economic loss - financial loss suffered as a result of the negligence e.g. direct consequent on damaged property

What economic loss cannot be recovered in the law of negligence?

pure economic loss - result of the negligence however not a direct consequent of the damage e

What is the case that defines the law on the recoverability for economic loss?

Spartan Steel v Martin & Co ltd (1973)

What is psychiatric harm in terms of negligence?

type of personal harm such as shock or PTSD and other recognised medical disorders

What is a primary victim?

c that suffered physical injury or fell within the zone of physical injury - can claim for psychiatric harm

What is the key case for primary victims?

page v smith (1996) - car crash caused by negligence, however suffered no physical harm = triggered chronic fatigue. D owes duty of care = harm was foreseeable not specific type of harm

What is a secondary victim?

someone that suffered psychiatric harm due to seeing someone suffer physical harm - not in the zone of danger

What is the key case for secondary victims?

mcloughlin v o’brian (1983) - witnessed distressing scenes in the aftermath of a car crash her family was in = D owed duty of care as she had sufficient proxmity

What are the three conditions needed in the Alcock test?

c must be in a relationship of close ties of love and affection (parental or marital), proximity in time and space, sight or hearing for psychiatric harm (recognised psychiatric illness)

What is the standard of care in negligence?

‘reasonable’ man in those circumstances

what is the definition of the reasonable man?

ordinary, typical man - not perfect, an objective standard created by the judiciary

What is a key case in standard of care in negligence?

nettleship v weston (1971) - standard of care of an experienced, skilled and careful driver

How does the objective standard take into consideration children?

takes into consideration the age of the child

How does the objective standard take into consideration illness?

illness on the part of the D is not taken into consideration

What are the two cases that relate to illness in the objective standard?

roberts v ramsbottom (1980) and dunnage v Randall (2015)

What is the Bolam test (1957)?

where d has a particular skill/competence, they are held to the standard of someone that would have that special skill e.g. doctor, lawyer etc

What is the standard of care for medical professionals and what is the case for this?

sidaway v board of governors of bethlem royal hospital (1985) - other reasonable neurosurgeons wouldn’t have disclosed the risk of spinal injury = not liable

What did the case of Montgomery v Lanarkshire health board (2015) change about medical professionals standard of care required?

Supreme Court held that patients had the right to make a decision and should be given sufficient information to do so - cannot be reduced to percentages

What test should be used to determine whether an alternative treatment is reasonable and should be discussed with the patient?

Bolam test - mcculloch v forth valley health board (2023)

What four factors should be considered when establishing the standard of care?

likelihood any injury will occur, likely severity of injury, cost of taking precautions, social value of activity

What is the key case for the probability that injury will occur?

bolton v stone (1951) - c was hit by a cricket ball, evidence established it was possible for balls to be hit outside the fence but only happened 6 times in 30 years. Favour of D - so unlikely that prevention wasn’t required

What is the key case for seriousness of the injury?

paris v stepney borough council (1951) - c was blind in one eye and sustained injury to other eye leaving him completely blind. D didn’t provide safety goggles - found in favour of C

What is the second key case for seriousness of injury?

wagon mound 2 (1967) - spilt oil into harbour, people dropped large metal into harbour damaging ship. Risk of ignition was low but damage was significant = more care should have been taken

what is the key case for the cost of taking precautions?

latimer v AEC ltd (1953) - factory flooded and made floor slippy , but owners put sawdust down. C tripped and sewed = D not liable as taken necessary precautions (sawdust)

What is the key case for social value of activity?

watt v hertfordshire cc (1954) - fireman was injured by heavy equipment - vehicle was not adapted to carry equipment. D not liable - risk justifiable for public benefit

What is the difference in the threshold for breach in sporting activities?

threshold is generally higher - considered socially valuable and risk is part of sport (Condon v Basi 1985)

What did parliament involvement lead to?

compensation act (2006) s1 - where D should have taken steps to meet standard of care, court consider whether requirement to take steps ight prevent desirable activity

How is standard of care established using evidence?

witness statements, expert evidence, documentation relating to the case

How do criminal factors affect standard of care?

where a person has committed a criminal offence, it can be used as evidence in a civil case

What does Res ipsa loquatur mean?

‘the thing speaks for itself’ - requirements include: incident was under d’s control, doesn’t happen if proper care is taken, d has no explanation for not being negligent

What is factual causation?

on bop, did the d’s breach of duty actually cause the c’s injury?

What is the test used to determine factual causation?

but for test - would the harm still have occurred if not for the actions of the d? (Barnett v Chelsea 1969)

What is the key case for loss of chance in the but for test?

hotson v east berkshire health authority (1987) - doctors negligently diagnosed extent of injury, suffered permanent damage. 25% of recovering fully if diagnosed correctly. 25% of damages awarded

What is loss of chance in the but for test?

where someone will receive partial damages based on the percentage of the chance they lost to an opportunity

What did the Wilsher case show about multiple causes in negligence claims?

if there are multiple, unrelated and non-negligent potential causes of injury - C must prove breach caused harm - over BOP

What is the key case for material contribution to harm?

bonnington castings ltd v wardlaw (1956) - innocent and guilty dust led to illness - illness is cumulative - sufficient that breach materially contributed to injury - question of degree

What is the key case for non-cumulative causes of injury?

mcghee v national coal board (1973) - dust that caused skin condition due to longer on skin - material risk is sufficient for causation

What happened in the case of Fairchild (2002)?

exposed to asbestos which led to mesothelioma - greater exposure = greater risk. Found for C - injury was caused by employers - each jointly and severally liable

What happened in the case of Barker (2006)?

contracted mesothelioma after asbestos exposure = HOL found damages awarded should be split to contribution caused.

What was the legislation that came from the decision in Barker (2006)?

Compensation act 2006 - s3(3) a + b = negligent exposure to asbestos causing mesothelioma, all negligent employers are liable for all damages

What happened in the case of Afshar (2005)?

Failed to advise 1-2% risk of nerve condition - sustained nerve damage and argued would not have had it if informed. HOL = didn’t satisfy but for as could have had operation anyway

What is legal causation?

should the defendant be considered liable or are there good reasons for denying liability?

What is remoteness of damage?

Damage/injury must be a reasonably foreseeable consequence of the negligence

What is the remoteness of damage judged according to?

standard of the ‘reasonable person’ and on the basis of what was known at the time

What happened in the case of Re Polemis (1921)?

employee dropped plant into ship hold - caused explosion and D was liable for all consequences even those not reasonably foreseeable

What happened in the case of Wagon Mound (No 1 1961)

oil leaked into water causing sparks and a fire damaging the wharf - D held liable for all damages on 1st instance. 2nd instance - damage by oil foreseeable, but not damage by fire

What did the change in Wagon Mound lead to a change in?

only the type of damage has to be foreseeable, not the extent

What happened in the case of Hughes (1963)?

manhole was left open overnight = 8yr old boy fell in with lamp and made explosion where boy was burnt. HOL = explosion not reasonably foreseeable but burn injuries were

What is the thin skull rule and the case for the rule?

Take the victim as they find them - Smith v Leech brain (1962) - sustained a burn and triggered cancer due to pre-existing condition - liable for all damages even if not foreseeable hat are W

What are intervening acts?>

other later actions that may contribute to or be the immediate cause of C’s injury - could cause a break in the chain of causation

What are negligent acts of the third party?

where the C has acted negligently in a way that breaks the chain of causation e.g. RTA cases and medical negligence

What happened in the case of Rouse v Squires (1973)?

lorry driver causes motorway accident - Rouse assists and Squires negligently crashed with other vehicle causing fatality - Squires wholly responsible (1st instance). 2nd instance = not broken - original negligence caused significant danger = partially responsible

What happened in the case of Knightly and Johns (1982)?

police failed to close tunnel and instructed police to go against flow of traffic - C hit and injured - police broke chain of causation so John not liable

What happened in Webbs v Barclay’s bank (2001)?

C injured as result of negligence - advised to undergo knee amputation. C sued D of loss including knee amputation - held negligent medical advise didn’t break chain of causation

What happened in the case of Lamb v Camden borough council (1981)?

squatters caused extensive damage to house - sought damages caused but intervening act not reasonably foreseeable and too remote

What happened in the case of Corr v IBC vehicles (2008)?

sustained head injuries to employer negligence - committed suicide - chain of causation not broken even though suicide is deliberate - reasonably foreseeable

What happened in the case of Mckew v Holland (1969)?

sustained knee injury - knee gave way for a while - gave way as he was descending steep staircase where he jumped down and broke ankle - HOL - broke chain of causation as unreasonable and negligent action

What is a defence in negligence?

arguments that the D uses to avoid or reduce liability - complete and partial defences

What is contributory negligence?

c own fault/negligence contributed to damage suffered = damages reduced

What are the three things the courts consider when handling a defence of contributory negligence?

did the C fail to exercise reasonable care for their own safety, did this failure contribute to their harm and by how much should damages be reduced? bvnvvv

What is the case law for contributory negligence?

froom v butcher (1976) - not wearing a seatbelt and got into a crash -= injuries would have been avoided so C was partially liable

What is Volenti non fit injuria

complete defence - voluntary assumption of risk and consent to doing negligent act

What are the two requirements for volenti?

1. c’s knowledge of the risk and still taking it

2. voluntariness of the assumption of risk by C

What happened in the case of Imperial v Shadwell (1956)?

shot firers injured at work - knowledge of associated risks and ignored them = volenti applies

What is mental capacity of assumption of risk and the case law for it?

applies when C has mental capacity to assume risk or consent

reeves v commissioner of police (2000) - committed suicide while in police custody and police failed to protect him - volenti failed

What is the case law for Voluntariness implied assumption of risk?

morris v murray (1991) - drinking a decides to ride in friend’s plane - crashes and sues D - volenti applies as knew friend was drunk but still embarked

What happens if someone tries to use volenti in a road traffic accident?

s149 road traffic act 1988 - use of volenti is excluded

What is Illegality?

no action can be found from a wicked act = C performs an illegal act

What two things must the D show to prove illegality?

1. c has engaged in illegal or immoral behaviour

2. link between illegality and tort

What happened in the case of Pitts v Hunt (1990)?

motorcycle crash where D was unlicensed and uninsured - C sued but illegality applied as he was a joint enterprise as a passenger

What did the case of Gray (2009) determine?

cannot recover compensation for loss in consequences of own criminal act as well as loss from punishment lawfully imposed

What happened in the case of Patel (2016)?

c paid D to bet on shares with illegal info but bet was never placed - illegality failed so C claimed money (flexible approach)

What three things should courts consider when deciding illegality?

1. purpose of probation that was breached

2. relevant public policies

3. whether denying claim would be a proportional response

What does the limitation act 1980 state?

s11 - personal injury claims limited to 3 years = extends to date of knowledge of injury

What are public authorities?

entities which have responsibility for exercising statutory duty or power e.g. health authorities, police, education, gov dep etc

What happened in the case of Hill v Chief constable of South Yorkshire police (1987)?

c daughter was victim of serial killer and argued police owed duty of care to conduct investigation - no duty owed as lack of proximity (no special risk)

What happened in the case of Osman v Ferguson(1993)?

D was obsessed with 15yr - told police might do something ‘criminally insane’ = followed pupil home and shot him and father.

action for police for failure to arrest - appeal not granted - blanket immunity

What does blanket immunity mean?

no action against the police could succeed in respect of investigation and suppression of crime

What is the liability for the police for pure omissions?

no liability found for pure omissions (micheal v chief of south wales police 2015)

What happened in the case of Kent v Griffiths (2000)?

after 999 call, ambulance took 40 mins to arrive - suffered respiratory arrest

ambulance has a duty of care to those relying on service