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Flashcards in Duty Of Care Chapter 2 Deck (26)
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1
Q

What is required to establish a claim in negligence?

A

That a duty of care exists and that that duty of care has been breached

2
Q

If an automatic duty of care doesn’t exist, what analogy will the court use.

A

Three stage formulation developed by Campari Industries plc v dickman

3
Q

What is the neighbour test- donoghue v Stevenson

A

Take reasonable care to avoid acts of omissions which can be reasonably foreseen

NEED TO KNOW: persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question

4
Q

Three questions asked in Capro to establish duty of care where established duty does not already exist.

A

1) was the risk of injury or hand to the claimant reasonably foreseeable.
2) was there sufficient proximity between the parties
3) is it fair, just and reasonable on public grounds to impose a duty of care?

ALL NEED TO BE YES

5
Q

Case which supports foreseeable injury or harm

A

Smith v littlewoods - building site broken into and fire started by kids which damaged neighbouring buildings.

6
Q

What is proximity

A

Relationship between the parties to establish duty of care

Watson v British Boxing Board

7
Q

Case law for fair, reasonable and just

A

L v Reading borough council

8
Q

Alternative to caparo

A

Robinson v chief constable of West Yorkshire police
To consider whether there is existing precedent and weigh up reasons for and against imposing liability in order to decide whether a duty of care exists.

9
Q

S1 compensation Act 2006 court considers …

A

Further implications of imposing liability

Prevent a desirable activity from being undertaken

Or

Discourage persons from undertaking functions

10
Q

3 groupings of public policy-

A

1) statutory authorities
2) flood gate claims
3) claims involving harm to claimant rescuers

11
Q

Statutory authority cases

A

Hill v Cheif Constable West Yorkshire - Yorkshire ripper case. Not reasonable, fair or just to prevent further victims.

Robinson v Cheif constable of West Yorkshire-
Bystander woman. Positive act meant 3 test capro was satisfied and duty of Care was owed.

12
Q

What is the general rule for duty of care owed to a rescuer

A

The defendant owes a duty of care to the rescuer, provided that a reasonable person in the rescuers situation would feel obliged to assist.

13
Q

When will a rescuer not succeed in their claim

A

When they have interfered unnecessarily as they have accepted the risk and no duty is owed.

14
Q

Rescuers receive physical harm …

A

Will be treated favourably Ward v T E Hopkins

15
Q

Osman case

A

Duty of care was declined between police and Victim. This was rebutted by ECHR as was a breach of Art 6 rights to fair trial.

Later Z stated a fair reasonable and just inclusion of policy within a decision does not breach a claimant human rights.

16
Q

What is consequential psychiatric harm?

A

Psychiatric harm which is as a result of physical injury.

17
Q

Two types of psychiatric injury

A

Someone has nervous shock because of an accident they were involved in or witness to.

Workplace stress

18
Q

Case example for secondary victim receiving psychiatric compensation

A

Chadwick v British railways

He was a primary victim not because he was involved but his own safety was believed to be at risk comforting the dying and injured in the dangerous train

19
Q

Mc Loughlin v O’Brien

A

Wife recovered compensation as she saw her family immediately after their injuries and was a secondary victim.

20
Q

Current law case for secondary victims

A

Alcock v Cheif Constable South Yorkshire

21
Q

What 3 points must be established by a claimant for psychiatric harm

A

The defendant owed a duty of care to the claimant

The defendant breached that duty

The claimant has clinically recognised psychiatric illness that is considered to be potentially worth compensation and was caused by the defendants negligence.

22
Q

Pure psychiatric harm diagram

A

Must be a claimable harm

Primary victim. Secondary victim
Foreseeabllity: Foreseeablity:
PI must have been Foreseen in someone
foreseen Of reasonable fortitude

Proximity: Proximity: close to victim
Claimant must be in In time and space,
The danger zone Relationship/perception
Or believed to be in it

23
Q

Psychiatric claimable harm case

A

Hinz v Berry

24
Q

Primary victims case psychiatric harm

A

Page v smith - claimant must prove some injury was foreseeable .

NB: if claimant is involved in an accident and injury was foreseeable. The court will not distinguish between physical or psychiatric injury.

25
Q

Alcock 5 factors to be considered on secondary victims

A

1) must be sudden shock
2) psychiatric harm
3) proximity of time and space to the accident
4) proximity of relationship (love involved)
5) proximity of perception- how the claimant became aware of the events. (Cannot be told about it must see or hear it for themselves)

26
Q

Is deliberately caused shock actionable?

A

Yes, under Wilkinson v Downton / Rhodes v Opo