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tort > negligence > Flashcards

negligence Flashcards

1
Q

what case defined negligence

A

Blyth v Birmingham waterworks

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2
Q

what is the burden of proof in negligence

A

the prosecution on the balance of probabilities

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3
Q

steps for negligence

A
  1. DOC
  2. breach of duty
  3. damage
  4. defences
  5. remedies
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4
Q

what are the 2 tests for duty of care

A

Robinson test and caparo test

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5
Q

what is the Robinson test

A

it is for existing precedent, under Robinson v CC West Yorkshire Police

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6
Q

what is the caparo test

A

for novel situations

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7
Q

what are the 3 parts of the caparo test

A
  1. was the harm reasonably foreseeable
  2. was there sufficient proximity
  3. is it fair, just and reasonable to impose a duty
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8
Q

was the harm reasonably foreseeable: explain

caparo test

A

must be foreseeable D’s acts/omissions could cause harm
it is objective- would a reasonable person have foreseen it would harm other

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9
Q

was the harm reasonably foreseeable case

caparo test

A

kent v Griffiths:

  • reasonably foreseeable C’s conditions would worsen if ambulance did not arrive promptly
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10
Q

was there sufficient proximity: explain

A

this refers to the closeness between C and D:
- physical sense
- legal relationship

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11
Q

sufficient proximity case

A

Bourhill v young:

-pregnant woman miscarried after hearing motorcycle accident around corner
-> not close in time or space

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12
Q

is it fair just and reasonable to impose a duty: explain

A

this is a policy based decision focused on the best interests of society

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13
Q

is it fair just and reasonable to impose a duty case

A

hill v CC West Yorkshire police:

  • not FJR to impose duty on police for failure to catch killer sooner
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14
Q

2 steps for breach of duty

A
  1. compare D’s conduct with standard of care expected from reasonable person
  2. consider risk factors that may raise or lower standard
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15
Q

what is the reasonable person test

A

an objective test-
D breached their duty if they failed to act in a way a reasonable person would have, or acted in a way a reasonable person wouldn’t have

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16
Q

what is the reasonable person

breach of duty

A

average intelligence and self control

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17
Q

case for the reasonable person

A

Glasgow corp v Muir

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18
Q

what does the reasonable person test ignore

A

particular characteristics such as inexperience

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19
Q

case for ignoring particular characteristics in the reasonable person test

A

nettle ship v Weston:

-learner driver crashed
- being a learner not relevant

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20
Q

3 special characteristics

A

-children
-amateurs
-professionals

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21
Q

explain special characteristic children

A

SOC compared to a reasonable child of the same age

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22
Q

case for special characteristic children

A

Mullins v Richards

-sword fight using rules
-conduct did not fall below standard of another young person

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23
Q

explain special characteristic amateurs

A

SOC compared to reasonably skilled amateurs doing same task

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24
Q

case for special characteristic amateurs

A

wells v Cooper

-judged against standards of other amateurs doing DIY

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25
Q

explain special characteristic professionals

A

judged against competent experts in same field

26
Q

case for special characteristic professionals

A

bolam v barnet hospital:
D’s conduct must be consistent w a substantial body of professional opinion

27
Q

the 5 risk factors

A

1.probability of harm
2.seriousness of potential harm
3.cost and practicality of taking precautions
4.potential benefits
5.unknown risks

28
Q

explain probability of harm

A

if probability of harm is low, D will not be expected to take as much care to guard against the risk

29
Q

case for probability of harm

A
  • Haley v LEB
    • used hammer to warn people against hole in road
    • near a school for the blind, blind person fell into the hole
    • probability of harm is high, workmen should have done more to guard against the risk
30
Q

explain seriousness of potential harm

A

if harm could be serious, soc may be raised

reasonable person would take greater precautions

31
Q

case for seriousness of potential harm

A

Paris v Stepney

- lost sight in one eye
- employer under higher duty to provide protective goggles
- risk of harm of becoming completely blind higher
32
Q

explain cost and practicality of taking precautions

A

balance size of risk with the cost and effort to the D guarding against it

33
Q

case for cost and practicality of taking precautions

A

Latimer v AEC

- injured after slipping on the floor
- sensible precautions had been taken by laying sawdust to reduce effects of flooding
- to eliminate risk would mean closing factory, disproportionate.
34
Q

explain potential benefits

A

standard lower if there if greater public benefit to the activity e.g in an emergency

35
Q

case for potential benefits

A

Day v High Performance Sports

  • had to be rescued from rock climbing wall
  • rescuer caused C to fall and become injured
  • rescuing climber (benefit) outweighed potential risk, standard of care lower
36
Q

explain unknown risks

A

if risk is not known, no breach of duty

37
Q

case for unknown risks

A

Roe v Minister of Health

  • patient became paralysed by a contaminated anaesthetic
  • unknown to medical experts at time that contamination occurred so no breach
38
Q

what does C need to prove for damage

A

that they suffered damage caused by D’s breach

39
Q

4 factors to consider for damage

A

factual causation, intervening events, remoteness and thin skull rule

40
Q

explain factual causation

A

but for test

41
Q

case for factual causation

A

Chester v Afshar

  • doctor failed to warn patient about risks involved in back surgery
  • but for doctors failure to warn, C would not have had surgery
42
Q

explain intervening events

A

can break chain of causation

43
Q

case for intervening events

A

Knightley v johns

-D caused accident
-officer sent against flow of traffic, caused second accident
-conduct was unreasonable, D not cause of second accident

44
Q

explain remoteness

A

only claim for types of losses which are reasonably foreseeable

45
Q

case for remoteness

A

wagon mound

- D’s negligently spilled oil in water of the harbour
- sparks ignited the oil causing fire damage
- oil pollution damage was reasonably foreseeable, but damage by fire was too remote
46
Q

explain thin skull rule in neg

A

D takes C as they find them

47
Q

case for thin skull rule in neg

A

smith v leech brain

- C had rare cancer gene
- burnt at work which brought on cancer and died
- burn reasonably foreseeable, D had to take C as he found him
- liable for death
48
Q

what are the 2 defences for negligence

A

contributory negligence and consent

48
Q

explain the defence of contributory negligence

A

C contributed to the damage, partial defence

49
Q

what act allows judges to reduce damages according to extent C contributed

A

law reform act 1945

50
Q

case for contributory negligence

A

Froom v Butcher

- C’s head injuries caused by not wearing seatbelt
- damages reduced by 20%
- if wearing no seatbelt or helmet would have made no difference, no deduction made
51
Q

explain defence of consent

A
  • C voluntarily agreed to a risk of harm with full knowledge of the risk
  • complete defence, C will receive no damages

need to show C:

  1. knew nature and extent of the risk of harm
  2. voluntarily agreed to it
52
Q

case for consent

A
  • Morris v Murray
    • spent afternoon drinking, C and D decided to take flight in D’S aircraft
    • plane crashed, killing D and injuring C
    • C voluntarily assumed risk of injury by accepting flight in aircraft by obviously heavily intoxicated pilot
53
Q

2 types of remedies for negligence

A

special and general damages

54
Q

what are special damages and what do they include

A

they are pre trial expenses from date of incident to date of judgment

includes pre trial expenses and loss of property

55
Q

what are pre-trial expenses

A
  • loss of earnings or expenses up to date of trial
  • e.g medical or travel expenses
56
Q

what is loss of property

A
  • if destroyed, market value
  • if damaged, cost of repair
57
Q

what are general damages and what do they include

A

post-trial losses

pecuniary and non-pecuniary losses (not financial)

  • future losses(future medical care, future loss of earnings )
  • pain and suffering(appreciate their condition)
  • loss of amenity(loss of things C enjoyed, damages increased if had particular skill or hobby)
  • specific injuries
58
Q

how can damages be awarded

A

lump sum (once-only award )

structured settlement (periodic payments)

59
Q

what is D under a duty to do for damages

A

mitigation of loss

  • C under duty to keep loss at reasonable level

tort (7 decks)

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