Personal Injury, Death and Damage to property Flashcards
(27 cards)
What are the elements of liability for negligence?
(a) There is a duty of care owed by the defender to the pursuer.
(b) There has been a breach in that duty by the defender
(c) The defenders’ breach has caused the pursuers loss.
What did the case of English v Wilsons and Clyde Coal Co Ltd 1937 establish?
That employers had a duty of care to their employees and could not escape liability.
Is a duty owed where parties are linked by contract?
Yes
What does the Bourhill v Young case establish?
That road users do owe a duty to other road users and pedestrians in the vicinity.
Was Bourhill successful in her claim?
No, she was determined to be outwith the ‘geographical proximity’ despite suffering nervous shock resulting in miscarriage. Not reasonably foreseeable
What is the ‘neighbourhood principle’?
Established by the case of Donoghue v Stevenson Lord Atkin stated “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
Who is you “neighbour” in law?
Lord Atkin stated that your “neighbour” is any person you ought to reasonably have in your contemplation when directing your mind to acts or omissions which are called into question.
Who are duties of care seen to be owed to?
Persons who are in my proximity, who i ought to have in my contemplation.
When are duties of care owed?
Where a person takes a foreseeable risk that are likely to materialise if sufficient care is not taken, as per the case of Muir v Glasgow Corporation 1943.
What are the facts of Muir v Glasgow Corporation 1943?
This case established a duty of care was not owed to children who were scalded by boiling water despite it only occurring due an employee allowing them in to shelter from rain.
The urn was dropped as one of the people carrying it dropped the handle. Lord Macmillan took the view that it was not reasonably foreseeable and was an improbable event.
What did the case of Hughes v Lord Advocate 1963 establish?
That the precise way in which an accident occurs does not have to be reasonably foreseeable if there was a duty to guard.
E.g. paraffin lamp hole in ground.
What are the facts of McKillen v Barclay-Curle 1967
In this case the defender was liable for not only the pursuers fractured rib, but also the reactivation of their tuberculosis even though it was not reasonably foreseeable. As established by the ‘thin skull rule’.
What are the facts of Paris v Stepney BC [1951]?
Standard of care case. Man was working in job which at time had no requirement for safety goggles. He had lost an eye during the war however and when an accident occurred at his place of work resulting in his complete loss of sight, the courts held that these special attributes constituted a breach of duty from the employer.
What are the two elements to causation?
(a) Breach must be causa sine qua non of the harm i.e the but for test must be satisfied
(b) Breach must be the cause caissons of the harm that is the immediate dominant or effective harm
Define “Causa sine qua non’
Necessary or inevitable cause
What are the facts of Barnett v Chelsea and Kensington Hospital?
A patient was presented to A&E where a doctor refused to see him. Patient returned home and died. He died of arsenic poisoning. Therefore although doctor was negligent there was no break in the chain as the patient would have died anyway.
Why did the court rule that there was no break in the chain in the case of Scott v Shephard?
Due to the fact that the throwing of a lit firework into a crowd is a predictable consequence even though it was thrown on by others.
What is meant by remoteness of damage?
That a defender is only liable for foreseeable consequences of their actions. A line will be drawn before losses become too speculative.
What is loss of chance?
Loss of chance involves liability for the loss of a chance. It is where you lose the right to do something but is rarely successful.
Why was loss of chance successful in Kyle v P and J Stormonth-Darling 1993?
As a firm of lawyers failed to lodge appeal papers in time and the pursuer lost his case.
The pursuer was awarded damages even though he could’ve have lost the appeal.
This was because he lost his right to appeal because the Solicitors had been negligent.
What defences are available to personal injury, death or property damage?
(a) Contributory Negligence
(b) Volenti non fit injuria (knowingly took risk)
(c) Damnun Fatale
(d) ex turpi causa oritur actio (no action arises from an immoral cause)
What piece of legislation regulates the defence of contributory negligence?
The Law Reform (Contributory Negligence) Act 1945 s.1
What is contributory negligence and as a defence what does it accomplish?
Contributory negligence helps prove that the pursuer somewhat contributed to their own lost through their own negligence. Where established damages will be reduced by a proportion to reflect the defenders contribution.
Define the defence ‘Volenti non fit injuria’
No wrong is done to the person who is willing or consented
