Negligence Flashcards

Question

Wilsher v Essex Area Health Authority [1987]

Answer 1

no allowance will be made for the inexperience of a junior doctor; expected to show the level of competence befitting a doctor holding the same post, or otherwise call someone more experienced for assistance.

Answer 2

if an amateur tackles, unaided, a job which far exceeds their capability and which is normally done by a professional, the householder is likely to be judged to have been negligent in attempting it in the first place.

Answer 3

C was employed by dd council. Dd didn't provide the C with protective goggles --> not usual to do so for this type of work, because the risk of this sort of accident occurring was small. However, the dd knew that the C was blind in one eye. In the course of his work a fragment of metal damaged his good eye – with the result that he was blinded. Failure to provide safety goggles had caused the blindness. It was held that the dd was in breach of duty. The potential injury risked was very serious: the total loss of sight. Therefore, in this case, reasonable care required that goggles should have been provided.

Answer 4

Barnett (claimant) presented himself at the hospital feeling very unwell, and later died. It was agreed by all parties that: the hospital owed him a duty of care and the wholly inadequate response of the hospital amounted to a breach of duty. However, it emerged that Barnett had unwittingly consumed a considerable amount of arsenic. The hospital claimed that even if its treatment had been appropriate, he would have died anyway. Therefore, the hospital did not cause his death.

Answer 5

Illustrates a case where when the defendant argued that it was the probable behaviour of the claimant himself, and not the defendant’s breach, that was the true cause of the claimant’s harm. --> The claimant was a steel-erector. The defendant employers were obliged to provide such employees with safety harnesses. They failed to do so, and McWilliams fell to his death. However, he had a history of not wearing his harness, even when it was supplied. They successfully argued that their breach was not the cause of his death because he would have died anyway.

Answer 6

Claimant worked in a factory where he was exposed to two different sources of noxious dust. Developed a lung disease. The claimant could only establish that the guilty dust made a material contribution to the disease and the House of Lords decided that this was sufficient

Answer 7

exposure to asbestos causes this cancer type. Employers argued the issue of causation, saying it wasn’t possible to determine which employer’s asbestos triggered the individual’s cancer and so failed the ‘but for’ test. HoL decided that the claimants could succeed against any or all of the defendants, as all owed Cs a duty of care and breached it, and all materially contributed. NB: Each employer was liable for the whole of the claimant’s harm, but between the dds themselves, liability could be apportioned under the Civil Liability Contribution Act 1978

Answer 8

Under this act, between dds themselves, liability could be apportioned (example from Fairchild case).

Answer 9

Hotson fell from a tree, suffering injuries which made it 75% likely that he would be permanently disabled. So when he went to hospital he had a 25% chance of recovery. At first he was negligently misdiagnosed by the hospital, and when the hospital finally diagnosed him correctly, he had lost any chance of avoiding permanent disability. The boy sued for the loss of his 25% chance of recovery. The Court of Appeal found in the boy’s favour, but the House of Lords reversed their decision, accepting the argument that, on the balance of probabilities, it was the fall, not the misdiagnosis that had caused the permanent disability. The claimant failed to satisfy the causation test.

Answer 10

HoL confirmed that claims for loss of chance of below 50 per cent are not going to succeed in personal injury actions. However, in cases of pure economic loss such claims will often be successful

Answer 11

prematurely born baby received negligent medical treatment and subsequently became blind; claim failed as, on the balance of probabilities, the claimant had not proved that the hospital’s error caused the blindness (only 1/5 of the possible contributing factors

Answer 12

C asked about the risks of a surgery, but the surgeon failed to warn her of a very small risk of serious injury. The operation was carried out carefully, but serious injury nonetheless occurred. C admitted that she would probably have gone ahead and had the operation, even if she had been properly warned. Despite this, the court decided that the failure to warn had caused the harm.

Answer 13

a driver negligently jackknifes his lorry; two others stop to help. A fourth then smashes into the back of the third driver’s lorry and shunts it forward. It hits and kills the second driver. The original driver remains responsible for the second driver’s death, despite the negligent conduct of the fourth driver; the chain was not broken

Answer 14

car negligently crashes at the far end of a one way tunnel. Attending policeman unforeseeably and negligently forgets to stop drivers entering the tunnel. The motorcyclist is hit and injured by an oncoming car. The original driver was not responsible for the injury to the motorcyclist, because the subsequent decision by the police is unforeseeable/broke chain.

Answer 15

the injury was an unforeseeable kind of harm, but that the harm was personal injury – highly foreseeable – meant that the HoL found for the Cs

Answer 16

rare for the defence of volenti to succeed against an employee, particularly 'where the employee has to perform dull, repetitive work’

Answer 17

Illegality defence failed. getaway driver in a robbery drove negligently and injured one of his partners in crime, who sued. His claim failed. One judge said it would simply be abhorrent to the public if it succeeded. Another pointed out the evident absurdity of judging breach in such a case, as it would require the trial judge to consider the standard to be expected of the 'reasonable getaway driver'

Answer 18

Illegality defence failed. Two young men had been drinking and then decided to take a motorbike ride home. The driver, Hunt, was underage, drunk and uninsured. Pitts, the claimant passenger, knew this and encouraged the driver to drive recklessly and terrorise pedestrians. Eventually Hunt crashed, killing himself and injuring Pitts who sued. The court held that the claim was defeated because of the illegality of the joint enterprise.

Answer 19

held that the test for remoteness of damage is one of reasonable foreseeability  would a reasonable person foresee the damage. If not, the damage cannot be recovered. --> Two provisios to this rule: the ‘similar in type’ rule; and the ‘egg-shell skull rule’.

Answer 20

Successful use of volenti. the drunkenness of the pilot was so extreme (and they had been drinking together) and glaring that the C could be said to have accepted the risk of his negligence in going for a ride in dd’s aircraft.

Answer 21

dd pled volenti defence, but court argued that as the C was a rescuer, he acted under compulsion and did not willingly accept the risk of injury. C was a police constable who sustained injuries when saving children from dd's runaway horse.

Answer 22

], the deceased hanged himself while in police custody. He was found 50% to blame and so only 50% of the damages were recoverable. --> The C needs to have contributed to the loss which they have suffered; the C does not need to have contributed to the accident itself. The relevant issue is not who caused the accident, but who caused the damage. So, the partial defence of contributory negligence could still apply even where a defendant is solely responsible for the accident in which the claimant was injured.

Answer 23

Pure economic loss. dd bought a house with unstable foundations and later sold it at a £35,000 loss. HoL held that the loss suffered was PEL + not recoverable. The defects in the house had become apparent before they caused any physical damage to any person or other property – only the house itself suffered damage, hence the PEL.

Answer 24

Situation of physical damage that is not suffered by the claimant, but by a third party. power cut to C’s factory caused by d’s negligence damaging an electricity cable belonging to the factory’s electricity supplier (so no DoC owed to C). The C could not recover for PEL (the melts which could have been processed during the time the electricity was unavailable), but could recover losses on the melts already in the furnace + loss of profit on these (consequential economic loss).

Answer 25

falls under general rule of no DoC for PEL. cattle infected from escaped virus from FMDRI; cattle markets closed; auctioneers claimed damaged but failed as the loss wasn’t caused by physical damage. Policy reason for this: floodgates argument

Negligence Flashcards

(53 cards)