Negligence Flashcards
(22 cards)
Describe
Duty of Care - Three types
Robinson v CC of WY Police, Caparo v Dickman confirmed in Robinson
Apart of Negligence - DOC
Established in Robinson v CC of WY Police
If a D owes a duty of care they are liable over C and can’t do an omission or be negligent.
1) Duty through existing statute precedent - Any cases or statutes that have developed a DOC in this area?
2) Duty by reason of analogy to existing duties- Can there be a duty of care as case is similar to another case.
3) Novel Situations - Incremental Approach
Caparo v Dickman confirmed in Robinson - Is it fair, just and reasonable to create a duty of care?
Describe
Existing Duties
Bolam v Friern Hospital Committee, Donoghue v Stevenson
Paris v Stepney BC, Food Safety Act 1990, Nettleship v Weston, Robinson v CC of WY Police, Apart of Negligence DOC
Doctor to patient - Bolam v Friern Hospital Committee
Manufacturer to Consumer - Donoghue v Stevenson
Employers to Employee - Paris v Stepney BC
Chef to Consumers - Food Safety Act 1990
Driver to Pedestrian - Nettleship v Weston
Police to Public - Robinson v CC of WY Police
Evaluate
The Robinson Test
- Led to greater clarity.
- Is all basis for duty of care covered in society? What happens on a novel situation? Ensures C gets?
- Can lay understand this? Easy for people to know what is a breach? What does this uphold?
Apart of Negligence DOC
- Most situations are already covered under Duty of Care, if a new situation occurs either reason by analogy or Caparo v Dickman test, C will always get justice.
- Easy for lay to understand as it’s made clear on what duty they have to the other person so they can ensure they don’t breach it, which upholds the rule of law.
Evaluate
Rules Fair to C
- Developed over a long period of time so more situations where a duty of care is now present.
- How likely would courts find a duty? What does this ensure for C and why?
- What is a downside to cresting new duties? Why is this a downside? What does it make it easy to do?
Apart of Negligence DOC
- Very likely there will be a duty as many expanded situations have duties, ensures C will get justice and compensation as there was a legitimate duty of care the D should have had to them.
- Uncertainty, not able to predict when a new duty will be made or if the courts will make one, so D is left uncertain, doesn’t uphold rule of law and makes it easy to sue the D unfairly.
Evaluate
Rules fair to D
- Creating new duties is fair.
- What test do courts use for novel situations? This ensures a new duty won’t be created if? What does this discourage? Is this fair?
- Are courts likely to find a new duty at all? Would this uphold rule of law? Why?
Apart of Negligene - DOC
- Caparo V Dickaman, fair, just and reasonable duty, it isn’t needed, compensation culture which is fair on the D
- Barely any unconsidered situations so courts aren’t likely to find new duties, upholds rule of law as D can predict the case and knows the existing duties that are relevant as it applies to their situation.
Evaluate
Broad Duties
- DOC’s established through common law are broad resulting in difficulty to understand.
- What is the duty for police to public? Why would this be confusing? How are police cases heard? Predictable?
- Why is this necessary though?
Apart of Negligence - DOC
- No duty unless they were aware of an issue, this will confuse lay people as the police cases are heard on a case by case basis on the facts the police officer knew, therefore it is hard to predict this kind of duty if you can’t tell if the cop was aware.
- Police can’t owe a duty to everyone they still need to be able to do their job, if they were unaware of an issue than it’s C’s fault for getting involved and getting hurt, unfair to hold cops to account for that.
Describe
Breach of Duty + Reasonable Person
Blyth v Birmingham Waterworks Co, Wells v Cooper
Apart of Negligence - BOD
Blyth v Birmingham Waterworks Co - Negligence is an omission to do something that the reasonable would or would not do.
D breaches their duty if they fall below the standard of the reasonable person.
Reasonable Person in general
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Wells v Cooper - The reasonable person is the ordinary person in the street doing same job as D.
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Describe
Characteristics of D
Bolam v Friern Hospital Management Committee
Montgomery v Lanarkshire Health Board, Nettleship v Weston, Mullins v Richards, Apart of Negligence BOD
If none apply compare to reasonable person.
Taken into account when factoring the duty test to apply onto D
Professionals
Bolam v Friern Hospital Management Committee - Did D act in same way as reasonable competent professional doing the same job? Would the professional body agree with D’s conduct? Montgomery v Lanarkshire Health Board - Duty breaches if consent isn’t given for procedure
Learners
Nettleship V Weston - Did the learner act in same way as reasonable competent professional doing the same job as them?
Children
Mullins v Richards - Did the child act in the same way as the reasonable person of the same age as them?
Describe
Risk Factors
Paris v Stepney BC, Latimer v AEC, Haley v London Electricity Board
Bolton v Stone, Day v High Performance Sports, Apart of Negligence BOD
A standard of care is how much care the D should have taken to care for D, this is factored in to determine if D is negligent.
A higher standard of care means D needs to do more to keep C safe.
C Special Characteristics
Paris v Stepney BC - If C has disability or illness/age that D knows, expected to take more care around them.
Taking Practical Precautions
Latimer v AEC - If D has taken all practical precautions against injury, low standard of care.
Size of the risk
Haley v London Electricity Board - If risk of injury is large, higher SOC as reasonable person would take more care. Bolton v Stone - Opposite, low risk, low standard of care.
Public Benefit of Risk
Day v High Performance Sports - If D action has a public benefit that outweighs risk of injury, lower standard of care, as benefits public by taking action.
Evaluate
Rule Fair to D
- Allowing Certain Characteristics is fair.
- What do courts consider for professional D’s? What does this allow doctors to do? What is their standard?
- Is experience taken into account? How is this unfair for learner?
Apart of Negligence BOD
- Knowledge and Practices at time, allows doctors to take a risk to save lives as their standard is of the professional body.
- Their expertise is not taken into account, learners don’t have the same knowledge as professionals but under a breach. They are compared against someone with more knowledge than them, which is unfair for them.
Evaluate
Rules Fair to C
- Tests hold D to high standards which is fair.
- How are learners compared against? Why would this be good for D?
- What are professionals judges against? Stops any? Can C get justice? However what can the professional body do that is opposite to this?
Apart of Negligence BOD
- Same level as a professional, fair as their actions still caused harm to the C especially as they would have been treated or serviced by them so it makes sense for the C to get justice here as they still expect a learner to do their job.
- Other professionals in their field, stops any standards slipping as compared to them, lets C get justice, but sometimes professional bodies will cover for their professional for reputation, diluting justice.
Evaluate
Reasonable Person test applies inconsistently.
- Reasonable Person test can result in inconsistent outcome for deciding breach of duty.
- How can reasonable differ person to person? Is this fair?
- How are individual cases treated? What is taken into account? Is this the exact situation? Is this fair?
Apart of Negligence BOD
- Everyone has their own different morals and views on what can be considered reasonable, judges may have different views from one another: meaning a same case heard by two different judges, can have a different outcome, which is hard to predict and isn’t fair.
- Case by case basis, take into account any risk factors in the scenario, which means that courts will consider the exact situation the D found themselves in, fair as every case is different.
Evaluate
Confusing for Lay People
- Breach of duty law is too complex for lay people.
- How many standard of care tests? Do these all come from a same case? Is this clear or accessible? What does this not uphold?
- Why are 4 test needed? What happens without them? Can a test be used for everyone?
Apart of Negligence BOD
- 4 different tests, each of them from different cases, law isn’t accessible or clear to lay people due to all of the tests, and this doesn’t uphold the rule of law
- Having four tests is necessary, unfair and harsh to treat everybody the same, as not everybody has same knowledge or age or standard as the other person, one test doesn’t fit all, so multiple tests allows taking into accounts various different circumstances.
Describe
Damages in General
Apart of Negligence Damage
- It must be proven that D had caused the damage to the C.
- The damage is the loss incurred by C due to D actions, the damages is the monetary value the loss amounts to.
Describe
Factual + Legal + Remoteness + Thin Skull Rule
Barnett v Chelsea and Kensington Hospital Management Committee
Wagon Mound, Smith v Leech Brain, Apart of Negligence Damages
Factual Causation
Barnett v Chelsea and Kensington Hospital Management Committee - But for D’s breach of duty, the injury or damage to the C would not have occurred.
Legal Causation
Can break chain of causation
* Actions of C - C acts in unreasonable and unexpected way
* Act of Nature - D not liable for extra damage caused by natural event
* Actions of Third Party - Third Party acts in a unreasonable unelected way
Remoteness of Damage
Wagon Mound - C can only claim for loss that is reasonably foreseeable and not too remote
Thin Skull Rule
Smith v Leech Brain - D must take C as they find them.
Evaluate
Factual Causation
- The test provides certainty
- How easy is it to apply? Is it used in every case making it? What does it support?
- When can the law get complex, why? What might happen to C.
Apart of Negligence Damages
- Very easy for both legal professionals and lay people to apply and predict case as easy test, consistent as used for every case which supports the rule of law.
- If there is more than two D’s, as one of them have to be the factual cause and this can get confusing as the judge might not know who would be at fault, leading to C not getting any justice at all.
Evaluate
Remoteness of Damage
- Fair as limits scope of D’s liability.
- What can D only be liable for in remoteness? What does this discourage? What does it limit?
- How flexible is foreseeable? How is remoteness decided? This makes it?
Apart of Negligence Damages
- Damage that can only be reasonable foreseeable, discourages any compensation culture and limits how much the C can sue D for.
- Really flexible, remoteness is decided on a case by case basis, judges each have their own views on what is remotes, which makes the test subjective and inconsistent with varying decisions that isn’t fair for D.
Evaluate
Intervening Act
- Can reduce D liability which Is fair.
- When can D liability be removed? Why is this fair for D?
- How can this be unfair to C? What is the decision on if someone intervened determined by? How do judges differ from one another? This makes it? What does this not uphold?
Apart of Negligence Damages
- If someone else’s actions intervened and caused V the damages instead thus mitigating what D did, fair as D didn’t cause this damage so they shouldn’t be charged for something they didn’t do.
- Unfair as C might not get justice as if someone else intervened, no compensation despite being hurt , decision is made subjectively based on what the judge things the other did being worthy or not enough to break chain of causation, judges have different views on this, making this inconsistent and unpredictable and breaking rule of law.
Evaluate
Thin Skull Rule
- Rule is fair for the C
- What does C still receive despite worser harm? The D can’t avoid? Who does this protect in society?
- How is this not fair for D? How does this clash with remoteness?
Apart of Negligence Damages
- C will still get compensation despite their injury being worser than D anticipated, D isn’t able to avoid any liability even if they didn’t intend to cause that kind of harm.
- D is liable for damage they couldn’t see , clashes with remoteness as the harm was not reasonably forsseable by D, couldn’t forsee the worser harm and that the C might have a condition increasing their harm. Still found liable.
Apply to an Exam Question
Flip
Apart of Negligence DOC
DOC
Is there an existing duty of care?
“Here there is already an established duty of care relationship of…”
Is there a reason by analogy possible?
“Therefore following the case/statute of…. A duty of care will exist between D and C”
Is there a novel situation?
Is it fair/just/reasonable to impose a duty of care on the D?
**IF APPLICABLE **
Did the public authority make the situation worse? Were they aware of the issue?
Yes - A duty of care will be owed?
No - Why is it unreasonable to impose a duty on them?
Apply to an Exam Question
Flip
Apart of Negligence BOD
Breach of Duty
How has D breached their duty?
Why have they fallen below the standards of a reasonable person?
If relevant
Are they a professional? Is their action something the professional body would agree with?
Are they a learner? Would they meet the standards of the professional doing same job as them?
Are they a child? Have they met a reasonable standard of a reasonable person their age?
Apply is relevant
Does the C have a disability or illness? How is the standard of care effected and why?
Has the D taken practical precaution against the risk? How is the standard of care effected and why?
Is there a public benefit to take the risk? Why? How is the standard of care effected and why?
What is the size of the risk created? Does D have to take more or less care? Why?
Apply to an Exam Question
Flip
Apart of Negligence Damages
Damages
What damage has C incurred because of the breach?
But for the C breaching their duty by…(how did they breach?), The C would or wouldn’t have suffered the harm or injury of their damage.
Was there any intervening acts?
[If Relevant]
Was the C acting unreasonable or unexpected way?
Was any damage done by nature?
Was a third party acting in an unreasonable or unexpected way?
How foreseeable was the result of the D’s breach of duty? Was it too remote or enough to be liable?
(If Relevant) - Did C have a pre-existing condition, how does this affect liability for D?
