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P9 - Tort > Duty of Care/ Breach > Flashcards

Duty of Care/ Breach Flashcards

(57 cards)

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1
Q

4 steps to claim

A

was there a duty of care, was that duty breached, was there causation (link breach and loss and are there any defences

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2
Q

legal quality of negligence established in..

A

Donoghue v Stevenson
law only concerned with carelessness when there is a duty to take care and this breach caused damage

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3
Q

Different view of tort of negligence

A

Spartan Steel and Alloys v Martin
- sometimes no duty, sometimes damage is too remote

two ways of tackling a claim

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4
Q

A) stopping someone from injuring themselves

A

no duty
Vellino v CC of Manchester
- criminal jumps out of window, chasing policy owe no DoC

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5
Q

AA) contributory negligence for A

A

man kills himself - sharp object left in cell
Reeves v Metropolitan Police

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6
Q

Breach of Duty established in

A

Glasgow corporation v Muir
- degree of care required varies with risk
- reasonable to foresee the consequence
- eliminates the personal equation

Duty of Care: reasonable foreseeability of harm.

Standard of Care: reasonable person standard, breaches occur only when actions deviate from what is considered reasonable under the circumstances.

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7
Q

B) Battle Conditions

A

Mulcahy v Ministry of Defence

no DoC in battle conditions (negligence)

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8
Q

C) DoC not owed to whole world (proximity and unforeseeability)

A

PROXIMATE claimant - Bourhill v Young
- suffered stillbirth as a result of hearing motorcycle accident
- unforeseeable claimant

Hall v Gwent Healthcare NHS Trust
- Prank triggered his psychotic illness
- not within DoC/ not foreseeable

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9
Q

X:Neighbour concept for DoC

A

Donoghue v Stevenson
- reasonably have them in contemplation

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10
Q

Y:Two-tier test for DoC

A

Anns v Merton LBC
Foreseeability (proximity) + no policy reasons why no duty = DoC

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11
Q

Z: todays retreat from Anns - more restrictive

A

Caparo v Dickman
Return to D v S
No DoC for negligence to random people who invested based on poor auditing.

Anns presumed a DoC whereas Caparo establishes a 3 stage test making the claimant prove DoC

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12
Q

3 Caparo Factors

A
  1. Reasonably foreseeable
  2. proximity
  3. Fair, Just and Reasonable to impose liability
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13
Q

Anns overruled

A

not liable for PEL - Murphy v Brentwood District Council

PEL would result in too broad and wide a liability

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14
Q

When to apply Caparo factors

A

IN NOVEL SITUATIONS ONLY

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15
Q

Caparo = novel situations case

A

Robinson v CC of West Yorkshire Police
Police injure old lady
- CA no DoC due to Caparo
SC - not novel case (D v S) neighbour principle - no reconsideration. DoC established

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16
Q

no DoC for Pure economic loss

A

Spartan Steel & Alloys v Martin
- DoC for ruined steel from negligently cutting off electricity
- no DoC for PEL - would be millions of claims

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17
Q

The issue with Caparo’s fair, just and reasonable

A

Policy issue?
no clear line between legal principles and policy

Although Rowley v Secretary of State for work and pensions - DoC would be inconsistent with statutes - claim thrown out.

Suggests courts respect S.O.P

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18
Q

Defensiveness argument for limiting the ability to sue

A

Reluctance to act quickly due to the threat of being sued - overcautious
Idea was incorporated in Bolam to protect Doctors

Hill v CC of West Yorkshire
- police being slow called ‘useless’ novel case
- pure omission. although foreseeable failed on proximity and fair just and reasonable to impose liability.

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19
Q

DoC of Social Services

A

Barrett v Enfield LBC - boy in foster care alleged negligence in being moved
claim succeeded, fair and reasonable to owe DoC in care

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20
Q

X v Bedfordshire CC

A

children suing for abuse other suing for social services wrongly thinking there was abuse
Given circumstances not reasonable to be liable

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21
Q

D v East Berkshire Community Health NHS Trust

  • how to balance social services acting quick whilst protecting rights of parents/children
A

‘cases when acts or omissions to not make you liable in negligence for another loss even though it may be foreseeable’
- parents had children taken away wrongly and suffered psychiatric harm

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22
Q

Lord Bingham dissent to D v East Berkshire

A

Parents also entitled to have rights considered
rejects the idea that a duty would make social services overly hesitant in removing children from abusive homes

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23
Q

DoC (pure omissions)

Study These Flashcards
A

Generally no liability. failure to confer a benefit.

Smith v Littlewoods Organisation - third party caused damage no DoC

24
Q

No duty to rescue or protect

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A

Stovin v Wise - many people could have prevented harm

25
Draw line between pure omission and negligence framed as an omission
Barret v Enfield LBC
26
Act vs Omission new definition
GN v Poole BC causing harm vs failing to make better easier to understand
27
When does duty of affirmative action exist
Lord Toulson - Michael v CC of South Wales 1. control over third party 2. Assumption of responsibility (safeguard)
28
Assumption of responsibility (affirmative action)
school - Barnes v Hampshire CC - child ran into road dies Storage - Airport authority v Western Air - plane stolen
28
Control over third party (affirmative action)
school - Carmarthenshire CC v Lewis - kid to driver die Prison - Home Office v Dorset Yacht escape and steal
29
Ambulance DoC
Kent v Griffiths - 999 said ambulance was coming it was 40 mins late, DoC yes
30
Fire and Coastguard and Police
No DoC - duty is not to individual but to public at large
31
Limits of assumption of responsibility
Mitchell v Glasgow CC - social housing landlord did not assume responsibility for rogue tenant who killed neighbour
32
IF NO affirmative action
You are only liable for making things worse Capital&Counties v Hampshire CC fireman turned off sprinkler assumed duty by turning up
33
Historically Psychiatric Illness
C's own fault if they succumbed to psychiatric illness - today doctors can tell what caused it
34
First successful 'secondary victim' case - fear for others
Hambrook v Stokes Bros - mother experienced severe nervous shock and eventually died - lorry driver might have killed her children - claim as secondary victim succeeded
35
Fear for yourself
Dulieu v White & Sons - revolutionary decision was allowed to sue for shock causing premature birth from driver crashing into her pub - only recovers because she fears for herself
36
Why Dulieu is wrong to say fear for yourself is valid not fear for others
Hambrook v Stokes Bros - very proximate, no floodgates - wrong to deny claim for selfless mother and not for selfish person
37
Secondary victim (PEL)
West Bromwich Albion Football Club v El-Safty - Player had claim in medical negligence but not the club who lost an asset - PEL
38
DoC to Rescuers (original position)
= primary victim Chadwick v British Transport Commission PTSD from helping - shock caused by fear for others Law for many years primary victims are same as rescuers
39
Evolution of rescuers position (Hillsborough)
Alcock v CC of South Yorkshire Police Test - Close relationship between claimant and victim - Proximity in time and space - reasonably foreseeable (person of normal emotional stability) - sudden horrifying event
40
Why did different groups fail to meet DoC criteria as secondary victims of Hillsborough
Family on TV - not proximate in space Home fans - Not close relationship Those who rushed to ground - came after bodies already covered and cleaned up 'not immediate aftermath' Saw on TV - not reasonably foreseeable because broadcaster not meant to show
41
Hillsborough Police? Rescuers
White v CC of South Yorkshire Police - Police officers suffered PTSD argued they were rescuers - went against Chadwick, Goff dissented - On the facts, would have been repugnant to make them better off than the families of victims
42
Bystander with no relationship to claimant, not reasonable fortitude and not horrific enough
McFarlane v EE Caledonia - colleagues Lord Keith - ordinary bystander cannot claim
43
Proximity in time and space/immediate aftermath test
McLaughlin v O'Brien - immediate aftermath = sees victim in A&E
44
Proximity in time
Taylor v A Novo - woman injured at work and C watches her dies 3 weeks later. No secondary victim. Cannot have endless time. must be a sudden horrifying event to stop carers from suing after witnessing slow deaths
45
'Sudden and horrifying'
Liverpool Womens NHS Trust v Ronayne - not horrifying and shocking enough if condition changes over a few days
46
Primary v Secondary distinction
Butchart v Home Office - prison put vulnerable prisoner in cell with suicidal one - SC ruled it was a breach of primary duty, owed him DoC. - Home office wanted it thrown out because it did not meet secondary hurdles
47
Law Commission Report (1997)
Was not implemented but argued for - arbitrary distinction between primary and secondary - Recommends dispensing of all Alcocks restrictions apart from close family one - also says to remove 'shock' requirement Mental health illnesses have evolved and now more black and white so cannot say it is only DoC for shock, proximity in space etc
48
DoC time of incident distinction
Roe v Ministry of Health - Care is assessed at the time of incident - cannot use hindsight/new research
49
Res Ipsa Loquitur
The thing speaks for itself Airport Authority v Western Air Ltd - unexplained accident - draw inference of fault the fact it happened is evidence of negligence when claimants rights depend on facts incapable of proof
50
Eliminating the personal equation
Nettleship v Weston - Learner driver has same DoC as any other driver - morally not at fault, legally she is, high standard of care
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P9 - Tort (5 decks)

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