Negligence (rev notes) Flashcards
Duty in fact
In general : Q whether risk of injury to C = one of the risks that made D’s conduct negligent
=> “foreseeable claimant” question = Bolton v Stone
Diff = SV in psychiatric injury cases
– duty in fact was main restriction on psychiatry injury claims until *Alcock *
Breach of duty : 2 stages of the fault inquiry
- Q of law: setting the (objective) standard against which D’s conduct will be assessed
- Q of fact : applying the standard to D’s conduct
F - the objective standard
= reasonable person
-> generally takes no account of D’s individual characteristics : “The objective standard of care eliminates the personal equation” – Lord Macmillan in Glasgow Corpn v Muir [1943]
F - the objective standard - cases where applied (2)
- CA in Nettleship v Weston [1971] : applied general standard of a reasonable driver to a learner driver, making no allowance for lack of experience
- CA in Dunnage v Randall : refused to take D’s mental illness into account (bcs wtf is a ‘reasonable paranoid schizophrenic’)
F - objective standard - no hindsight
reasonable person in D’s shoes at the time of events
= Roe v Ministry of health : no taking into acc subsequent medical discoveries
F - variations in standard (4)
- child defendants
- specialist defendants
- pure omissions
- Bolam
F - child defendants
= Mullin v Richards : standard = “ordinarily prudent and reasonable child of that age”
=> two 15yo schoolgirls playing mock sword fight w/ plastic rulers, one of them got injured in the eye when a ruler broke – judge awarded damages but CA reversed decision
F - specialist defendants (AOR)
standard for person holding himself out having particular skill = what could reasonably be expected of a person possessing that skill
=> eg Phillips v William Whiteley: woman getting abscess after having her ears pierced in D’s department was unable to establish negligence bcs D’s conduct of the procedure didn’t fall below standard of a reasonable jeweller, even if additional precautions would have been taken by a reasonable surgeon
F - pure omission cases
= where D is under a duty to confer a benefit on somebody towards whom they have not assumed a responsibility (eg occupiers to NV / neighbours) standard is modified to take into acc D’s individual circumstances
=> eg Goldman v Hargrave - extinguishing tree on fire not beyond D’s means
=> contrast w/ Holbeck Hall Hotel v Scarborough BC : survey which would have enabled prediction of landslide v expensive
F - professional defendants (Bolam)
Bolam test : doctor is not lb in negligence if has acted in accordance w/ practice accepted as proper by resp body of skilled medical practitioners, even if there is another body of skilled practitioners that takes a contrary view abt that practice
=> question of institutional competence : judges lack expertise to choose btw 2 conflicting expert practices
=> /!\ practice must still be reasonable = ‘withstand logical analysis’ (Hl in Bolitho v City & Hackney HA) : courts reserve a right to find negligence if conduct appears unreasonable
F - professional defendants - exception where Bolam doesn’t apply
= medical negligence cases involving non-disclosure = Montgomery v Lanarkshire Health Board (2015) :
- D is under a “duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment”
- ‘material’ = such as reasonable person in P’s position would be likely to attach significance to the risk, or doctor is / should be aware that particular patient would be likely to attach significance to
Damage - general def
‘[A] claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off, physically or economically” – Lord Hoffmann in Rothwell v Chemical & Insulating Co
but /!\ not all forms of being worse off count as damage eg C who looses a loved one as a result of D’s negligence is not deemed to have suffered damage in the eyes of the law
Damage - 3 categories
- personal injury
- property damage
- pure economic loss
Damage - personal injury (def)
injury = “includes any disease and any impairment of a person’s physical or mental condition” – Limitation Act 1980, s 38(1)
Damages - personal injury - egs (3)
- Dryden v Johnson Matthew Plc : change in ‘physical capacity for ordinary life’ (eg risk posed by allergy / bodily capacity for a type of work being impaired) = actionable damage
- Rothwell: risk of future illness or anxiety about the possibility of that risk materialising not actionable damage
- Cancer vs Pleural plaques in Rothwell :pleural plaques are almost always symptomless, don’t effect C’s physical abilities or life expectancy or vulnerability to disease = not damage (only a sign of exposure to asbestos) vs mere presence of cancer (even if no symptoms yet) requires immediate invasive treatment = damage
