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tort > Negligence- introduction > Flashcards

Negligence- introduction Flashcards

1
Q

What does Jenny Steele say on the ‘ocean of liability’

A

That the same doctrines appear time and time again. So do the same policy arguments too.

-But judges have discretion- they make come to different outcomes in every case

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2
Q

outcome in Cunningham v Reading Football club

A
  • D held liable when football hooligans pelted police officers with concrete from the crumbling stadium
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3
Q

What did the officers argue in Cunningham v Reading Football club

A
  • Officers argued that the club carelessly allowed the stadium to fall into pieces, and set the scene for this third party conduct- both harmful and wrongful
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4
Q

What analogy comes from Urbanski v Patel: (Canada case)

A

The Rescuer Analogy

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5
Q

Outcome in Urbanski v Patel: (Canada case)

2

A
  • D held liable to C’s father (who had donated one of his own kidneys to save her life)
  • That he became a rescuer throughout the surgeon’s carelessness- so he should be liable
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6
Q

outcome in Prendergast v Sam and Dee

2

A
  • D held liable: harm to C was reasonably foreseeable

- Court said: a doctor is under a duty to write legibly

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7
Q

What type of case is Perry v Harris

A

A bouncy castle castle- novel case

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8
Q

Outcome in Perry v Harris

A

Steel J held D liable. D (parent) was under a duty of ‘uninterrupted supervision’

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9
Q

What problem did the CoA find in Perry v Harris (critique of Steel J)

A

That Steel J ‘applied too high a standard’ therefore, liability should not be ascribed

-judges exercise considerable discretion

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10
Q

Case for taking incremental steps

A

Watson v British Boxing Board of Control

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11
Q

Watson v British Boxing Board of Control

Lord Phillips MR: (on incremental steps)

A

‘We need to take small incremental steps to develop the law, however, in this case we cannot do that.’

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12
Q

Watson v British Boxing Board of Control

Lord Phillips:

A

identified the BBBC as being under a duty to be ‘proactive’.

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13
Q

Watson v British Boxing Board of Control

Outcome

A

-Update medical procedures as medicine advances. - BBBC held labile, practices should move on with science.

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14
Q

6 categories of negligence law

A
  1. Duty of care
  2. Breach of duty
  3. Causation
  4. Damage
  5. Remoteness- extent of liability
  6. Defences
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15
Q

Main case for duty of care

A

Donoghue v Stevenson- Lord Atkin (neighbour principle)

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16
Q

What is the neighbour principle in Donoghue v Stevenson

A
  • Take reasonable care where harm is reasonably foreseeable

- D may be held liable where C is ‘closely and directly’ affected by his or conduct- proximate relationship (proximity)

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17
Q

which case did Lord Bridge state 3 requirements

A

Caparo Industries plc v Dickman

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18
Q

What are Lord Bridge’s 3 requirements in Caparo Industries

A
  • Reasonably foreseeable harm (agrees with Lord Akin that harm should be RF)
  • Proximity (agrees with Lord Atkin)
  • Justice, fairness, and reasonableness
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19
Q

what new principle did Lord Bridge add to Lord Atkin’s neighbour principle in Donoghue

A
  • Justice, fairness, and reasonableness

A policy consideration

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20
Q

Why was the just, fair and reasonable approach critiqued in Caparo industries

A

if we extend the law to a new set of circumstances, this will encourage a flood of cases, leading to the courts being overwhelmed. (Policy consideration that put a card in the hand of the D)

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21
Q

Lord Reed’s approach came from what case?

A

Robinson v Chief Constable of West Yorkshire

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22
Q

Robinson v Chief Constable of West Yorkshire

What was decided (compared to other cases)

A
  • That precedent should be departed from if necessary [29]

- These cases are called novel cases- where courts will have to consider reasonable foreseeability

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23
Q

Robinson v Chief Constable of West Yorkshire

Why did Lord Reed argue that we don’t need to go through established principles

A

Because there are a lot of existing laws that establish clear principles- e.g. a doctor owes a patient a duty of care- so we don’t need to go through the Caparo test in court [30]

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24
Q

Robinson v Chief Constable of West Yorkshire

What is a novel case? (Lord Reed)

-what do judges have to consider?

A

‘Where the established principles do not provide an answer, that the courts need to go beyond those [‘established’] principles in order to decide whether a duty of care should be recognised’ [27]

(The rule of law an important consideration)

-In novel cases judges have to consider whether they should develop the law incrementally

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25
Q

case for reasonable person standard

A

Glasgow Corporation v Muir, Per Lord Thankerton

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26
Q

what is the reasonable person standard (3)

A
  • An objective, external test
  • The RP standard is insensitive to D’s personal equation or idiosyncrasies
  • s this objective test fair? What if D lacks the mental capacity of a RP? The law might be seen to be very scrict here
27
Q

what 3 things must the RP take into account

A
  • cost of taking care
  • gravity (or seriousness) of harm
  • probability of harm
28
Q

2 cases for cost of taking care

A
  • Latimer v AEC Ltd

- Watt v Hertfordshire County Council

29
Q

case for gravity of harm

A

Paris v Stepney Borough Council

30
Q

2 cases for probability of harm

A
  • Read v Lyons

- Bolton v Stone

31
Q

Beyond these 3 factors that the RP must take into account, what further factor is considered

A

-The D’s purpose (Watt v Hertfordshire CC

32
Q

Case for: relevance of context

A

-Qualcast (Wolverhampton) Ltd v Haynes (House of Lords).

-

33
Q

Obiter from Denning Lj in Watt v Hertfordshire CC

commercial enterprise

A

-if the situation occurred in a commercial enterprise, without an emergency, D would have been held liable

(relevance of context is important)

34
Q

Case for D’s purpose

A

Humphrey v Aegis Defence Services Ltd

35
Q

Humphrey v Aegis Defence Services Ltd.

First decision: per Bidder J

A

D had not breached the duty owed to C.

  • It was not reasonably practicable for D to dispense with the participation of the interpreters in the training exercises.- They had to be involved
36
Q

To justify his decision what case did Bidder J find support for

A

Daborn v Bath Tramways Motor Co Ltd

37
Q

Decision in Daborn per Asquith LJ (2)

the purpose to be served … social utility

A
  • The purpose to be served, if sufficiently important, justified the imposition of abnormal risk.
  • The Court of Appeal places emphasis on social utility in the war-time context in which the case arose.
38
Q

Final decision in Humphrey v Aegis Defence Services Ltd

Moore-Back LJ

A
  • That Bidder came to the right decision- D had not breached the duty owed to C
  • The decision was correct but in the circumstances it was not unreasonable
39
Q

What 2 factors are considered in causation

A

factual and legal causation

40
Q

Case for factual causation

A

Barnett v Chelsea and Kensington Hospital Management Committee

41
Q

Case for Legal causation

A

Stapley v Gypsum Mines Ltd

42
Q

test in factual causation

A

but-for test- focusing on the necessary conditions of a harmful outcome

43
Q

test in legal causation

A
  • the real, direct or effective cause

- focus shifts to the ascription (or attribution) of responsibility (e.g. to a wrongdoer)

44
Q

3 things to remember for the legal causation

A
  • Lookout for wrongdoers
  • Ascribing responsibility
  • Prove on balance of
    probabilities: prove 51% that the person is liable
45
Q

case for damage

A

Hotson v East Berkshire Area health Authority

46
Q

what does the law look for when it comes to damage

A

-substantial harm

47
Q

What was damage defined as in Hotson v East Berkshire

A

loss of the chance of making a full recovery; by contrast, the House of Lords treated the ‘damage’ as ‘long-term disability’ (per Lord Ackner).

48
Q

What rule comes from reasonableness

A

A scope rule

49
Q

what does the remoteness doctrine establish (2)

A
  • the extent of liability. It draws a line between recoverable and irrecoverable loss
  • Balancing C’s security and D’s freedom of action- link to pursuit of distributive justice
50
Q

for remoteness what must the damage be

A

The damage must be of a reasonably foreseeable type

51
Q

Remoteness- reasonably foreseeable type case

A

Oversees Tankship (UK) Ltd v Morts Dock and Engineering Co, The Wagon Mound

52
Q

case for egg shell principle

A

Smith v Leach Brain & Co Ltd

53
Q

Remoteness and egg shell principle-

When may D recover damages

A

1) where the damage is of a reasonably foreseeable type and where
2) C’s particular susceptibility to harm means that his or her losses extend beyond the threshold of reasonable foreseeability

54
Q

principle founded in Smith v Leach

A

that a tortfeasor takes his victim as he finds him’

55
Q

3 factors we must establish in the egg shell skull principle

A
  • C shows that harm is of a reasonably foreseeable type.
  • However, the extent of the harm suffered by C goes beyond the threshold of reasonable foreseeability.
  • If C has a particular susceptibility, he or she may invoke the eggshell skull principle to make recovery for the harm that lies beyond the threshold of reasonable foreseeability.
56
Q

case for Principle and Policy

A

McLoughlin v O’Brian

57
Q

principle and policy: Lord Scarman

A

judges should always base their decision on ‘principle’: (focusing our attention on the relationship between clamant and defendant).- focus on context and pursuit of corrective justice.

58
Q

principle and policy: Lord Edmund-Davies

A

he found Lord Scarman’s view of the law ‘novel’ and ‘startling’ - and emphasised that judges regularly ground their decisions on ‘policy’

59
Q

What did Ernest Winrey said about tort law

A

That tort law should be only about C and D, corrective justice and personal responsibility. If you strain from principle, you go away from tort.

60
Q

principle and policy: what may Cs place emphasis on

A

accident-prevention or general deterrence

61
Q

principle and policy: what may D’s place emphasis on

A

the fear that the ‘floodgates’ will open, or defensiveness (e.g., a medical practitioner), or the fear that a finding of liability will foster a negative blame culture.

62
Q

principle and policy: what may judges place emphasis on

A

they may take a more neutral view of policy- he or she may see economic efficiency as relevant to the operations of negligence law.

63
Q

wider considerations of the language of the law of negligence (2)

A
  • tort law is open-textured- meaning that judges can extend it to cover the facts of novel cases
  • the law of negligence is informed by the ideal of corrective justice

tort (13 decks)

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