Tort Flashcards
DOC for omissions
None except: 1) statutory duty 2) contractual duty 3) D has sufficient control over C 4) D assumes responsibility for C 5) D creates the risk
DOC for acts of third parties
None except: 1) A has assumed responsibility to protect B from danger 2) A has done something that prevents another from protecting B from that danger 3) A has a special level of control over that source of danger 4) A’s status creates an obligation to protect B from danger (Robinson)
DOC for public bodies
Treated as private individuals. No DOC for omission based on statutory power or duty to act. No DOC if incompatible with the intentions of the statutory scheme for public body, considering policy matters, can only be held liable for operational matters
Novel DOC: Caparo Test
IFF no precedent, develop incrementally. 1) harm reasonably foreseeable 2) proximity btwn C and D 3) fair just and reasonable
DOC for ambulance
DOC for ambulance to respond in reasonable time to emergency call based on proximity
Steps in tort claim
1) loss or damage 2) duty 3) breach 4) causation 5) remoteness 6) defences
Steps to establish breach of duty
1) establish SOC 2) breach? (=did act fall below SOC)
Nettleship v Weston
Learner driver judged by standard of ordinary driver
Professional negligence (SOC): Bolam v Friern
SOC = an “ordinary reasonable man exercising and professing to have that special skill”
Means trainee solicitor SOC = SOC of person professing to be private solicitor
Children SOC
whether reasonable and careful x-year old would have foreseen risk of injury
Illness and disability SOC
Reasonably competent standard of non-disabled person (ie competent driver) unless sudden onset, where = reasonably competent driver unaware that he is suffering a condition impairing his ability to drive
SOC = question of ___, Breach = question of ____
SOC = law (judge), Breach = fact (jury)
Factors in determining breach
1) likelihood of harm 2) magnitude of harm 3) practicality of precautions 4) benefit of D’s conduct 5) common practice 6) “state of the art” defence” 7) sport
Breach: magnitude of harm (seriousness of injury)
If any injury may be serious, more care will be needed than if risk was of minor injury
Breach: practicality of precautions
cost and practicality of avoiding risk v severity of risk
Breach: benefit of D’s conduct (Compensation Act 2006)
if D takes risk aiming to protect life/property
Compensation Act 2006 - consider whether steps to meet SOC might 1) prevent a desirable activity from being undertaken or 2) discourage ppl from undertaking desirable activity
Breach: benefit of D’s conduct (Social Action, Responsibility and Heroism Act 2015
When determining breach consider whether person acting for benefit of society, ie heroically and acting responsibly
Breach: common practice
- If was common practice in field
- but court can say common practice itself was negligent if illogical
Breach: ‘state of the art’ defence
Assess D’s actions against knowledge in profession/accepted practice at time of breach
if unforseeable risk no negligence
not expected to know all knowledge in field
Breach: sport
Must be “reckless disregard” for C’s safety bc players will take risk in heat of moment
Breach: burden of proof
Burden is on C to prove D breached DOC
Breach: relevance of criminal prosecution
If D has been criminally prosecuted for act causing C’s injury then C can use conviction iff is evidence of careless conduct (ie dangerous driving)
Breach: res ipsa loquitur
= “the facts speak for themselves,” in v small number of cases where only plausible explanation for C’s injuries = D’s negligence but cannot explain how accident occurred
Conditions = 1. thing causing damage under control of D 2) accident would not normally happen w/out negligence 3) cause of accident is unknown to C ie C has no direct evidence of D’s failure to take care
