Tort Law Flashcards
(38 cards)
In tort of negligence civil liability is based off of establishing what three principles
Duty of care
Breach of duty
Damage
To establish a duty of care, the Caparo test must be used, what are the three steps
Foreseeability- how foreseeable is the tort (Kent V Griffiths)
Proximity- the closeness of the claimant and defendant (Bourhill V Young)
Fair, just and reasonable- if it would be fair just and reasonable to impose a duty of care in such circumstances (Mulachy V Ministry of Defence)
What test was replaced by the Caparo test
The neighbour test- Donoghue V Stevenson= the first time when a duty of care was owed
What does Robinson V Chief Constable of West Yorkshire (2018) affirm about the Caparo Test
That the Caparo Test only needs applying in new and novel cases and that the courts should generally establish a duty, courts should look to existing statutes and precedents and indentify duties through analogy
What is the test for a breach of duty
An objective test- would the reasonable person fail to fail the required standard of care
Professionals are judged by the standard of the profession as a whole, what case affirms this
Bolam (1975)
When deciding whether professionals like doctors, lawyers and accountants have breached their duty of care what must be questioned
Does the defendants conduct fall below the standard of the ordinary, competent of that profession
Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant?
Learners are judged at the same standard of the competent more experienced person, what case affirms this’s ?
Nettleship V Weston
The standard is that of a reasonable person of the defendants age at the time of. The accident, what case affirms this
Mullin V Richard’s
When the court considers if there’s been a breach of duty, it will consider certain factors whether the standard or care should be raised or lowered, what must be considered
Special characteristics= mental illness and impairments (Paris V Stepney Borough)
Unknown risk= is the risk of ham unknown there can be no breach
Size of risk= where the risk is small it is unlikely there will be a breach of duty (Bolton V Stone)
Appropriate precautions= will consider the balance of risk involved and if the appropriate precautions (Lamiter V AEC LTD)
Public benefit= will this protect the public, did they hit 1 or 60 people?
The third part of any negligence claim is for the claimant to prove that damage has been suffered, what are the two parts in proving that there has been damage caused
Causation= the idea the breach of duty has occurred the injury or damage being claimed for
Remoteness of damage= that the defendant is only liable for the harm caused by their action if their harm was foreseeable
What is the test used for factual causation
‘But for test’; but for the defendants act or omission the injury or damage would have never occurred
What case affirms the use of the ‘but for’ test
Barnett V Chelsea and Kensington Hospital Management committee (1969)
What is Novus Actus Intervenius
(Legal causation)- an intervening act to break the chain of causation
When factual causation is proved it must be shown that the damage is not too remote from the negligence of the defendant, where does the test for remoteness of damage come from
The Wagon Mound (1961)= a result such as an injury of damage which a reasonable person could foresee could result from his actions or omissions
The defendant will be liable if the type of injury was foreseeable, even though the prescie way in which it happened was not, what three cases cover the injury foreseeable
Hughes V Lord Advocate (1963)= it was foreseeable, extent of injury wasn’t
Bradford V Robinson Rentals (1967)= was foreseeable
Doughty V Turner Asbestos (1964)= unforseeable
What is the eggshell rule and what case correlates to this
You must take your victim as you find them
Smith V Leech Brain and Co (1962)
What is the rule of res ispa loquitur
Means ‘the thing speaks for itself’ so the claimant has to show
- the defendant was in control of the situation which caused the injury
- the accident would not have happened unless someone was negligent
BALANCE OF PROBABILITIES
IF THE CLAIMANT CAN. PROVE THESE THREE POINTS THE BURDEN OF PROFF FALLS TO THE DEFENDANT TO PROVE HE WAS NOT NEGLIGENT
What case affirms the res ispa loquitur rule
Scott V London and St Katherine Docks (1865)
What is a pecuniary loss
A loss that can be measure in money because of a legal wrong
What is a non-pecuniary loss
Physical and emotional pin, distress, suffering and inconvenience
What are special damages
Compensations for expenses you incur due to an injury caused by negligence that are specially calculated up to the date of settlement
What are general damages
Damages for pain sufffering and loss of amenity
What can general damages pay for
Future medical expense including adapting a car or hour to be suitable for severely injured persons
As the claims are specially calculated there will needed to be medical evidence of the injuries suffered as a direct result of the accident and how long the injuries will take to recover, if at all
