Liability in negligence Flashcards Preview

Law (paper 2) > Liability in negligence > Flashcards

Flashcards in Liability in negligence Deck (27)
Loading flashcards...
1
Q

What is required to prove negligence?

A
  1. Duty of care
  2. Breach of duty
  3. Damage (caused foreseeable loss or injury)
2
Q

What is a duty of care?

A

A link between the defendant and the claimant which imposes a legal obligation for them to act carefully.
About establishing a legal relationship between them.

3
Q

What happened in Donoghue V Stevenson?

A

Established the neighbour principle to decide who owed a duty of care.
‘A person so closely and directly affected by your actions they should be considered when doing the act or omission.’

4
Q

What happened in Caparo industries V Dickman?

A

Created the new 3 part test to establish a duty of care.

5
Q

What is the Caparo test?

A
  1. Was damage reasonably foreseeable?
  2. Was there sufficient proximity between the claimant and the defendant?
  3. Is it just and fair to impose a duty of care?
6
Q

What is meant by was damage reasonably foreseeable?

A

Is it foreseeable that a person in Cs position would suffer damage as a result of Ds acts/ omissions?
(Kent V Griffiths)

7
Q

What happened in Kent V Griffiths?

A

Was foreseeable that the victim would suffer harm or injury when an ambulance failed to turn up within a reasonable amount of time.

8
Q

What is meant by was there sufficient proximity between the claimant and defendant?

A

Proximity requires that they have a legal connection or relationship this can be in distance, time or space.
Only need to prove one.
(McLoughlin V O’brian)

9
Q

What happened in McLoughlin V O’Brian?

A

Successfully claimed for nervous shock when a lorry driver had seriously injured her family, even though she did not witness it she had still suffered psychiatric injury.

10
Q

What is meant by is it just and fair to impose a duty of care?

A

Would it be in the best interests of society to impose a duty of care, sometimes fear that allowing a case to go ahead would open the law too wide and flood the courts. Public policy.
(Griffiths V Lindsay)

11
Q

What happened in Griffiths V Lindsay?

A

Not fair for a taxi driver to owe a duty of care to a drunk passenger who ran out and was run over as a result.

12
Q

What is a breach of duty?

A

They have failed to reach the standard of care expected by the reasonable man.
They must have done an act/omission that fell below the standard of care expected by them, this is known as a breach of duty.

13
Q

Whats the two-stage test used for deciding whether or not a professional has fallen below the standard of care expected?

A
  1. Does the conduct fall below the standard of a reasonable, competent professional?
  2. Is there a substantial body of opinions within the professions that support their actions?
    (Bolam)
14
Q

What happened in Nettleship V Weston?

A

Leaner crashed, decided leaners were held to the standard of a competent person.

15
Q

What things do the court take into account when looking at the standard of care expected?

A
  1. The defendants age- young person does not have to reach the same standard of care as an adult. (Mullins V Richard)
  2. The defendant’s profession (Bolam test)
  3. Characteristics of the claimant- If the claimant is at more risk of being harmed they owe greater standard of care. (Paris V Stepney)
  4. The magnitude of the risk- Likelihood of harm is small act is not negligent.
  5. Defendant has taken reasonable precautions- Not negligent if they have taken precautions. (Latimer V AEC)
16
Q

What is factual causation?

A

‘But for’ D breach of duty would the claimant have suffered harm or injury?
(Barnett V Kensington hospitals)

17
Q

What happened in Barnett V Kensington hospitals?

A

Doctor did not examine patients who had arsenic poisoning.

Was not convicted as if he didn’t examine them they would have died anyway.

18
Q

What is the but for test?

A

Must be proved that the claimant would not have suffered damage if not for the defendants acts/omissions.

19
Q

What is meant by remoteness of damage?

A

Only damage that is reasonably foreseeable can be claimed for.
( Wagon Mound)

If they suffer an extreme form of RF damage they will still be liable.
(Bradford V Robinson)

Thin skill rule (Smith V Leech Brain)

20
Q

What are intervening acts?

A

When something happens that breaks the link between D’s conduct and the damage.

21
Q

What happened in Baker V Willoughby?

A

Defendant was liable for all losses and reduced earnings even after the amputation as if not for the negligent driving he never would have lost his leg. The shooting was not an intervening act.

22
Q

What happens when there are multiple causes?

A

When there are a number of possible causes of the damage, it can be particularly difficult as the ‘but-for test’ does not work.

23
Q

What happened in Wilsher V Essex area health authority?

A

Claimant had gone blind, evidence showed that there was 6 possible causes.
Doctors negligence was only one possible cause therefore he was not negligent.

24
Q

What happened in the Wagon Mound case?

A

A negligent oil spill from the defendants tanker had floated into a nearby wharf. Sparks from the welding ignited some cotton laying in the oil and set fire to the wharf.
Not liable as the damage caused was too remote from the negligent act.

25
Q

How much needs to be foreseen?

A

So long as the type of damage/injury is foreseeable it does not matter if the way in which it occurred is not foreseeable. Hughes V Lord advocate.

26
Q

What is the thin skull rule in negligence?

A

If the claimant suffers more harm due to a pre-existing condition the defendant will be liable for the full extent of the injuries.
Smith V Leech brain and Co.

27
Q

What is Res Ipsa Loquitur?

A

General rule is that the claimant must prove all three elements, in situations where its difficult to do this as they are unaware of where the negligence took place, burden of proof may shift over to the defendant to prove that they have not been negligent.
Scott V London and St Katherine docks.