Flashcards in Basis of negligence Deck (43)
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1
what is negligence?
Another area of tort, breach of a duty of care which results in damages
2
what are the other types of negligence apart from the main one youve been studying?
-
3
what are the 4 concepts/ingrediants/categories of negligence? & donoughe
Duty of Care
Breach of Duty (also called Standard of Care)
Causation aka damage
Defences
The modern law of negligence was established in Donoghue v Stevenson must prove:
1. the defendant owed them a duty of care;
2. the defendant was in breach of that duty;
3. the breach of duty caused damage and;
4. the damage was not too remote.
4
when you talk about duty of care also what do you need to think about?
The legal test for imposing a duty of care varies according to the type of loss.
For personal injury and property the Caparo test applies (case summary).
For psychiatric injury the Alcock test applies.
For pure economic loss
For policy considerations
For liability relating to an omission
5
DUTY OF CARE?- essentially what is duty of care
Essentially a RELATIONSHIP between two or more parties
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intro duty of care e.g?
For the incident with Mo, Ed/Luigi could be liable for the tort of Negligence. To prove negligence it must first be shown that Ed owed Mo a “duty of care”. Under the principles of law established from the “neighbour principle” in Donoghue v Stevenson and refined in Caparpo Industries v Dickman (some duties obvious and some not), to have a duty the - 3 PART TEST
7
what is meant by relationship?
relationship - it could be pre exisiting (doc to patient) but also if they dont know you still rels e.g walking down road - road user liable for you
if there is no rels there is no negligence
if rels= go through process
8
what is meant by breach of duty?
a.k.a standard of care- actions/responsibilities within duty - looking for - certain standard/expectation of peoples behaviour- if fall below = liable
9
what is expecations based on?
based on reasonableness not about perfection
Essentially the BEHAVIOUR or expectations within that relationship
and whether these actions were REASONABLE?
starts off rmt then gradually reasonable personal test etc
special skill + risk factors
10
what if fall below standards of rmt?
look at causation
11
what is essentially causation?
aka damage
2 types of causation- causation in fact and legal
12
what is causation in fact?
Did the actions of the Defendant CAUSE the problem / injury?
(CSI-style investigation)
& how did it happen so factual etccccc we do this first - FACTUAL CAUSATION
13
what is legal causation?
am i liable, so should?
SHOULD the Defendant be liable for causing the problem / Injury
- so the other factors
-plus remoteness
14
what is meant by defences? (final ele) to prove negligence?
Is SOMEONE ELSE (or YOU) at fault as well as the Defendant?
15
HISTORICAL-Historical development of negligene?
England didnt have much neg principles developed, americans was further ahead
16
american case
american case- Palsgraf v. Long Island Railroad [1928] 248 NY 339, US Supreme Ct- Key Facts: Workers help man onto train but drop a bag of fireworks (which explode) knocking over scales fall on a lady further down the platform - q should we pay for her injury- person with fireworks probably doesn't neither guards, hidden in box so should we pay- NEED PROXIMATE CAUSE- NEED RESPONSIBILITY WE NEED TO PROTECT AND LOOK AFTER YOU- IF NOT= NO
17
cardazo about american case? and quote?
Ultramares Corporation v. Touche, 174 NE 441 [1947]- Key Facts: Auditors did not discover falsified entries to a set of accounts
Floodgates…..
“The Law should not admit to liability in an indeterminate amount for an indeterminate time to an indeterminate class.”
(Cardozo, CJ) [444] - need some aspect of predictability - interdemianncy= predcitable need to know fixed so we know what our responsibiltes and liabilites are
18
what about donoghue v stevenson?
ULTIMATE CASE- neighbour principle- pricniple of privity of contract - person ill didnt have contract but argue that there was duty of care = liability , werent cafe owner it was companies liability
19
what is neighbour principle?
sets up duty of care dont always ned pre exsiting rels
20
what about 2 different groups departing from donoghue?
we got narrow ratio and wide ratio
Narrow ratio restricts donoghue of only 2 products-so only 2 manu duty to consumers
21
what are the number of early cases apart from dongohue?
product liability cases
Grant v. Australian Knitting Mills Ltd [1936] - PC- Key Facts: Woollen “Golden Fleece” underpants gave the claimant dermatitis after wearing them for a week (usual time!) before washing them
narow ratio application
22
what is a wider ratio application case?
Haley v. London Electricity Board [1965]-Key Facts: Workers should have foreseen the presence of a blind pedestrian who tripped over the handle of a hammer left to warn of a hole ahead- yes fine if could se barrier but couldnt see barrier = duty of care owed yes?
23
other cases to grasp the concept of duty?
-Lamb v. Camden London Borough Council [1981]
- Hilder v. Associated Portland Cement Co [1961]
- Camarthenshire CC v. Lewis [1955]
- Anns v. Merton LBC [1978]
-Murphy v. Brentwood DC [1990]
-Ravenscroft Rederiaktiebolaget Transatlantic [1991]
- Muirhead v. Industrial Tank Specialists [1985]
-Governors of the Peabody Donation Fund v. SirLindsay Parkinson & Co Ltd [1985]
- Smith v. Littlewoods Organisation [1987]
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DUTY- going through the historical cases for duty how do we establish duty the modern way?
basics- if obv- donoghue
if not obv- three part test caparo industries
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what is the three part test?
who is my neighbour?
The 2 part test was proximity and policy only- more about pol judge shouldnt be making pol decisions it should be gov so...
3 part test=
Yeun Kun-yeu v. Attorney-General of Hong Kong [1987] - PC- gave foreseeability and proximity needed
Caparo Industries v. Dickman [1990]
26
what did caparo give for 3 part test?
-Forseeability of damage?
-The relationship of “proximity” or “neighbourhood” between the parties; and
-The court considering it fair, just & reasonable to impose a duty of a given scope on one party for the benefit of the other
-FORESEEABILITY-PROXIMITY-JUST & REASONABLE
27
How has it been applied since then in other cases?
-Topp v. London Country Bus (South West) Ltd [1993]
-Wright v. Lodge [1993]
- Stovin v. Wise [1996]
- Stovin v. Wise [1996]
-Gorringe v. Calderdale MBC [2004]
-Customs & Excise Commissioners v. Barclays Bank plc [2006]
-Islington LBC v. UCL Hospitals NHS Trust [2005]
-Bhamra v. Dubb (t/a Lucky Caterers) [2010]
-Barrett v. Ministry of Defence [1995]
-Jebson v. Ministry of Defence [2000]
28
Summary of establishing duty?
Leading Case: Donoghue v. Stevenson [1932] AC 562- neighbour pirinciple
Leading Case: Caparo Industries v. Dickman [1990] 2 AC 605 (HL)- 3 part test
3part-test: Forseeability, Proximity, Fair Just & Reasonable
Essentially just labels rather than individual requirements
29
what is the next principle we need to think about for duty?
incremental steps
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