Tort Law - Breach of Duty Flashcards Preview

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Flashcards in Tort Law - Breach of Duty Deck (325):
1

Bolton v Stone general

Cricket club

2

Mansfield v Weetabix Ltd general

Malignant insulinoma

3

How was Social Responsibility and Heroism Act 2015 largely response to perceived compensation culture?

Factors laid down therein were already considered under common law

4

Barnett v Chelsea and Kensington Hospital JUDGMENT

Do not take sickness into account

5

Part 1 of the Consumer Protection Act 1987

Statutory defence if supplier/producer/manufacturer could not have reasonably avoided the risk due to lack of medical/scientific knowledge at the time

6

Who in minority in Nettleship v Weston thought skill should matter?

LJ Salmond

7

What two disadvantages to the Learned Hand Formula are there?

Assumes L (gravity) can have an accurate value, and distasteful to allow infliction of harm in the name of economic efficiency

8

Unusual susceptibility to injury through allergy needed to be considered for gravity of harm

Wither v Perry Chain

9

Condon v Basi per Sir John Donaldson MR

Higher degree of care required by a professional player

10

Mullin v Richards judgment

Allow attribution of age and maybe even gender

11

Hucks v Cole judgment

Negligent despite others would have done same as easily avoidable and taught in prelim stages of medicine

12

Mustill J in Thompson v Smith Shiprepairers

Employer needs to keep up to date but 'slow to blame him for not ploughing a lone furrow'

13

Thompson v Smith Shiprepairers

D not expected to 'plough a lone furrow'

14

Wells v Couper general

Door knoc

15

What case stated that foreseeability is always a question of degree, and Bolton does NOT mean it is justifiable to always neglect risk of small magnitude?

The Wagon Mound (No.2)

16

What defence is found in Part 1 Consumer Protection Act 1987?

'Development risks' defence

17

What case explored the standard expected of alternative medicine?

Shakoor v Situ

18

What did Compensation Act 2006 do?

Restated current common law, requiring courts to have regard to if liability might prevent/discourage desirable activity

19

Phillips v Whiteley (William) Ltd general

jeweller, ear, infection

20

CoA said irrelevant if you could show a standard almost applies to an activity

Chipchase v British Titan Products

21

Bolam v Friern Hospital Management Committee general

ECT broken bones

22

Paris v Stepney BC general

One eye, goggles, nail

23

What approach to BoD was accepted overall in Bolton v Stone?

Magnitude of risk is part of wider inquiry, not ultimate test in itself, so probability is only one factor

24

Easily avoidable risk, elementary teaching, but others would have done same

Hucks v Cole

25

What case shows appellate courts should not interfere with trial judge's finding of primary facts?

Benmax v Austin Motor

26

L&O on Paris v Stepney BC

Shows 'time dimension' of negligence, as likely it would be negligent both not to give employees with one eye AND two eyes goggles

27

Sikh wedding, egg

Haley v London Electricity Board

28

Whipper v Jones judgment

Not foreseeable so not negligent

29

Baker v Quantum Clothing Group

Look to Health and Safety regulations (in this case on noise) for standard of care expected

30

Edward Wong Finance v Johnson Stokes general

Conveyancing solicitors

31

Who tried to explain Reid's support in Latimer v AEC?

L&O

32

Knee plastic flag

Sutton v Syston Rugby Football Club

33

What case suggested res for res ipsa loquitur in medical negligence needs to give rise to a negligent act needing no expert evidence?

Ratcliffe v Plymouth

34

What is the Learned Hand Formula?

Breach is when B (prevention) is less than PL (probability and gravity of injury)

35

Phillips v Whiteley (William) Ltd judgment

Reasonable care shaped by nature of task

36

Name five influencing factors for BoD

Timing, context, gravity of harm, likelihood of damage and cost of precautions

37

Leamington spa, broken leg

Condon v Basi

38

What case suggested an RP would only act if damage was probably/likely?

Bolton v Stone

39

Where was the basic test set down for BoD?

Blyth v Birmingham Water Works

40

What does Mulheron argue about the applicability of Bolitho?

Generally recognised as a 'rare' occurrence, triggered by a degree of 'Wednesbury unreasonableness'

41

What does res ipsa loquitur mean?

'The thing speaks for itself' - C can succeed even without causation evidence

42

Mansfield v Weetabix Ltd judgment

Allow unknown disability to be taken account of

43

The 'Learned Hand' formula comes from what case?

United States v Carroll Towing

44

Sutton v Syston Rugby Football Club general

Knee plastic flag

45

What are at least four of the arguments that Cane considers AGAINST fault principle as basis for payment of compensation?

Bears no relation to degree of fault, bears no relation to means of tortfeasors, harmdoer may be held legally liable without moral culpability or vice versa, fault principle pays little attention to conduct/needs of V, justice may require compensation without fault, often difficult to adjudicate allegations of fault and fault principle contributes to blaming culture and discourages self-responsibility

46

What three problems does Cane point to in adjudicating allegations of fault?

Difficulties in the nature of the legal test (abstract), problems of proof (happen quickly) and concentrating too much on one specific cause to exclusion of other evidence (which statistical investigation would throw light on, e.g. altering surface of road)

47

What does Medical Innovation Bill 2015 propose?

Doctor allowed to depart from 'accepted body of opinion' provided the decision is responsible, where responsible is detailed as requiring things like consultation with other doctors and detailed records on treatment and effects

48

DA v North East London Strategic HA general

Two mothers giving birth, brain damage to one not helped

49

Khou v Gunapathy judgment

Singapore CoA emphasised narrow construction of Bolitho - 'unreasonable' is not a 'merits-based' question of expert opinion

50

How does Lee argue externally generated norms make an important epistemic contribution to the RP standard?

External standards by experts in a wide range of areas

51

King v Sussex Ambulance judgment

Altruistic purpose made them not liable

52

Gold v Haringey Health Authority

Bolam applies to any profession requiring a special skill/knowledge/experience

53

Whippey v Jones general

Great dane, hector

54

Brown v Rolls Royce judgment

Failure to take a common precaution does not NECESSARILY connote negligence - just places evidential burden on D

55

Why did Lord Saatchi propose Medical Innovation Bill 2015?

Believed Bolam encourages doctors to act conservatively and not be experimental

56

What statute is relevant for timing as an influencing factor for BoD?

Part 1 of the Consumer Protection Act 1987

57

What was one of the last jury cases?

Bolam v Friern Hospital Management Committee

58

Sub-prime mortgage, 90% of property value

Paratus AMC v Countrywide Surveyors

59

L&O use this case to suggest courts more likely to declare widespread practice negligent than medical practitioners

Edward Wong Finance v Johnson Stokes

60

Decide reasonable care by nature of task

Phillips v Whiteley (William) Ltd

61

Roe v Minister of Health general

Disinfectant and anaesthetic glass vials

62

Very rare for individual to argue too costly to spend on prevention

Palmer v Cornwall CC

63

Barnett v Chelsea and Kensington Hospital general

Tea, arsenic, doctor ill

64

Industrial deafness, knitting mills

Baker v Quantum Clothing Group

65

Withers v Perry Chain general

Allergy, barrier cream

66

What case said Bolam requires the body to be 'Both respective and responsible and experienced in [the] particular field of medicine'

Hills v Potter

67

What approach to BoD was accepted in parts of Bolton v Stone?

Greater probability of foreseeable harm

68

Why does Cane believe fault principle in BoD bears no relation to DEGREE of fault?

Courts rarely distinguish between negligence and error/mistake, despite knowing extreme carelessness is frequently committed with no/minor consequences

69

Door knob

Wells v Couper

70

Tesco v Pollard

No compliance with voluntary standard regulation was still fine but caution in drawing hard lines between voluntary and mandatory standards

71

Who argued 'Reasonableness' inevitably reflects male perspective because it's a construct of patriarchal society and thus should be discarded

Martin

72

Nettleship v Weston general

Learner drivers

73

Smeldon v Whitworth general

Collapsed rugby scrum

74

United States v Carroll Towing general

'learned hand' formula

75

What does Cane argue Bolton v Stone shows?

English law does not require D to pay for gain/benefit at the expense of V (e.g. no need to build higher walls), unjustly enriching them, but justice may require compensation without fault

76

Smeldon v Whitworth judgment

Referee failed to apply standardd phase sequence - no need for reckless disregard, just simply oversight

77

What case does Cane rely on to suggest justice may require compensation without fault?

Bolton v Stone

78

Ratcliffe v Plymouth

Res in medical negligence needs to give rise to a negligent act needing no expert evidence (e.g. cutting off the right instead of left leg)

79

Who highlighted the 'time dimension' of negligence?

L&O

80

Hucks v Cole general

Easily avoidable risk, elementary teaching, but others would have done same

81

Coxall v Goodyear GB general

'nursemaid school of negligence'

82

Blake v Galloway general

Bark in eye

83

What judge in what case showed lack of obviously compelling reason for a lower standard of care in emergency context?

King v Sussex Ambulance - LJ Buxton

84

Bolitho v City and Hackney Health Authority

Body of opinion needs to be 'responsible' with a 'logical basis' and need to show EXPERTS have weighed up risks and benefits of treatment

85

What case suggested simple oversight (not reckless disregard) is enough to breach duty of care?

Smeldon v Whitworth

86

Name at least two cases on timing being an influencing factor for BoD

Roe v Minister of Health; Mage v Trustees of the Birmingham Archdiocese of the Roman Catholic Church; Smith v P & O

87

Baker v Quantum Clothing Group general

Industrial deafness, knitting mills

88

From what jurisdiction is the Learned Hand formula?

America

89

Horseman and cameraman

Woolridge v Sumner

90

Failure to take a common precaution does not NECESSARILY connote negligence - just places evidential burden on D

Brown v Rolls Royce

91

Bark in eye

Blake v Galloway

92

What two cases does Lee rely on to show effect of changing and evolving knowledge on past effect/damage?

Thompson v Smith Shiprepairers; Bolam/Bolitho compromise

93

Maynard v West Midlands Regional Health

If D professes a special skill, held to professional person with that skill

94

Judge cannot choose one opinion over another if both satisfy Bolam test

Maynard v West Midlands Regional Health Authority

95

What did Lord Reid in Bolton state about cost of precautions?

Inappropriate to take them into account

96

Look to Health and Safety regulations (in this case on noise) for standard of care

Baker v Quantum Clothing Group

97

Roe v Minister of Health judgment

Assess if D had been negligent in light of knowledge existing at the time - no benefit of hindsight

98

Weinrib

'Cost of precautions is irrelevant' in English law

99

Haley v London Electricity Board

Sikh wedding, egg

100

Montgomery v Lanarkshire Health Board judgment

Exception to Bolam when negligently fail to warn of 'material risks' which is something the RP in C's position would regard as significant

101

Latimer v AEC general

Flooding, sawdust, close factory

102

Bolam applies to question of amount of info a medical practitioner needs to give to patient on risks

Sidaway v Board of Governors of Bethlem

103

What case made it clear 'unreasonable' from Bolitho is not a 'merits-based' question?

Khou v Gunapathy

104

Wilsher v Essex Area Health Authority

HoL - although Bolam gave scope for difference in medical opinion, judge could still find one to be negligent

105

Pearce v United Bristol Healthcare

CoA used Bolitho to extend Sideway so that if there is a significant risk which would affect normal person's judgment, normal responsibility of doctor to inform patient.

106

LJ Salmond in Nettleship v Weston

Thought skill should matter

107

King v Sussex Ambulance general

Paramedic fell helping patient from home to ambulance

108

Dermatitis, oil machine, barrier cream

Brown v Rolls Royce

109

who highlighted the Compensation Act 2006 is narrowly drafted and gives no wide reassurance as a result?

Morris

110

Paramedic fell helping patient from home to ambulance

King v Sussex Ambulance

111

What does Cane believe the fault principle does in terms of removing self-responsibility?

Focuses on individual's rights against others, rather than their self-responsibility

112

Benmax v Austin Motor

Appellate courts should not interfere with trial judge's finding of primary facts (unless perverse), but can evaluate evidence to work out proper inference

113

Palmer v Cornwall CC

Very rare for individual to argue too costly to spend on prevention

114

Edward Wong Finance v Johnson Stokes according to L&O

L&O suggest courts more likely to declare widespread practice negligent than medical practitioners

115

What judge and in what case suggested it was inappropriate to take cost of precautions into account?

Lord Reid in Bolton v Stone

116

Lee on Compensation Act 2006

Might lead to broader judicial enquiry of how decision impacts wider world, but 'notoriously uncertain as to its effect and purpose'

117

Cricket club

Bolton v Stone

118

What approach to BoD was rejected in Bolton v Stone

Foreseeability

119

What two cases conflict on the duty of an employer to dismiss/not dismiss a willing employee?

Coxall v Goodyear GB; Withers v Perry Chain

120

How do L&O explain Reid's support in Latimer v AEC, despite Bolton?

Qualification given in Bolton - if risk is so great as to require D to desist altogether, can be found negligent even if impractical to pursue activities in a safer fashion

121

Who highlighted how RP test can be used to justify discrimination?

Moran

122

Age is an allowed characteristic, and maybe even gender

Mullin v Richards

123

Sutton v Syston Rugby Football Club judgment

Rugby matches 'obviously' desirable activity and standard of care shouldn't be set so high as to be discouraging

124

Aircraft do not usually crash so pilot was reasonably expected to explain why it did for res ipsa loquitur

George v Eagle Air Services

125

How is there cautionary wording in Social Responsibility and Heroism Act 2015?

Only requires courts to have regard to factors

126

Who said that Blyth is more of a normative than descriptive test?

Lee

127

Who highlighted the '"Cloggers' Charter' so higher league players need take more care even when playing with lower league

Geary

128

Mental disorder, dual carriageway

Widdowson v Newgate Meat Corp

129

What case states that If accident usually avoided in proper course of things, reasonable evidence accident arose for want of care

Scott v London and St Katherine Dock

130

Paratus AMC v Countrywide Surveyors general

Sub-prime mortgage, 90% of property value

131

Why should the Learned Hand formula be rejected?

Too based on economics, lack of clarity and overlooks factors like purpose and context of activity

132

What did the minority in Paris v Stepney BC say?

Serious accident regardless of Vs number of eyes

133

Tomlinson v Congleton BC general

No swimming, dangerous water

134

Mog v Pettman Smith judgment

No need to give full reasons

135

What were the two principles for negligence of employer through fault of omission in Morton v William Dixon?

Is what D did not do commonly done in the circumstances and was what D did not do so obviously wanted it would be follow to neglect to do it

136

What made Weinrib conclude 'the cost of precautions is irrelevant' in English law?

Lord Reid in Bolton

137

Social Responsibility and Heroism Act 2015

Courts stated take into account if D acted for benefit of society, in a predominantly responsible way and if D was heroic

138

United States v Carroll Towing judgment

Three factors - probability event would happen P), gravity of injury that would be caused (L) and cost of preventing event (B)

139

Why is the precedential value of BoD decisions so low?

Factually specific cases

140

Morris on Compensation Act 2006

Narrowly drafted and no wide reassurance to help with perceived compensation culture

141

What Bill has Lord Saatchi proposed?

Medical Innovation Bill 2015

142

What judge sat on both Bolton and Latimer v AEC?

Lord Reid

143

Who said 'cost of precautions is irrelevant' in English law?

weinrib

144

Condon v Basi general

Leamington spa, broken leg

145

What case shows courts (HoL) maintaining control over negligence case in medicine after Bolam?

HoL in Wilsher v Essex Area Health Authority although Bolam gave scope for difference in medical opinion, judge could still find one to be negligent

146

Montgomery v Lanarkshire Health Board general

Pregnant, diabetic and short

147

The Wagon Mound (No.2) general

Oil water

148

Watt v Hertfordshire CC general

Firemen, special equipment but no trailer

149

Smith v West Yorkshire HA

Bolam doesn't require doctor to 'second-guess' what other professionals may think - only needs to act according to practice accepted as proper by a reasonable body of persons practicing the same art

150

Bolam v Friern Hospital Management Committee judgment

Assessment of standard of care can lead to 'one or more perfectly proper standard' as long as in accordance 'with a practice accepted as proper by a reasonable body of medical men skilled in that particular art'

151

Woolridge v Sumner judgment

Needed recklessness of rider to breach (Diplock LJ)

152

Why does Cane believe the fault principle has not greatly contributed to compensation culture?

Cannot explain greatly increased volume and changed pattern of tort claiming over that period

153

Bolton v Stone judgment

Creating a risk doesn't automatically mean negligence - RP would only act if damage was probable/likely

154

Maynard v West Midlands Regional Health Authority on Bolam

Judge cannot choose one opinion over another if both satisfy Bolam test

155

Garcia v St Mary's NHS Trust judgment

Medical opinion not flawed not to have heart surgeon on call as doesn't mean he would have been available for V

156

Which case used Bolitho to extend Sidaway on informing patients?

Pearce v United Bristol Healthcare

157

Collapsed rugby scrum

Smeldon v Whitworth

158

Why does Cane suggest increased claims may be one aspect of?

larger social development of 'rights culture' (e.g. HRA) built on strong concept of individual entitlement

159

Ng Chun Pui v Lee Chuen Tat general

Coach central reservation

160

Flooding, sawdust, close factory

Latimer v AEC

161

Geary on Condon v Basi

'"Cloggers' Charter' so higher league players need take more care even when playing with lower league

162

Smith v P & O general

Employee secondary exposure to asbestos

163

How does Cane believe the 'Why pick me' argument is solved?

By liability insurance to a degree, reducing tort injustice and spreading burden of compensation

164

If neither give evidence, D cannot rebut inference from maxim of res ipsa loquitur

Widdowson v Newgate Meat Corp

165

Bolton v Stone gave what three possible approaches to test for BoD?

Foreseeability, greater probability of foreseeable harm and magnitude of risk is part of wider inquiry, not the ultimate test

166

What are the three subheadings under context as an influencing factor?

Social utility, sport and emergency

167

What act referred to but didn't define 'desirable activity'?

Compensation Act 2006

168

Posner on learned hand formula

Economic analysis of law, only leading to economically efficient liability

169

Hajgato v London Health Association

Bolam places medical profession 'above the law'

170

Who argued Bolitho introduced asymmetry between litigous challenges facing V and D?

Mulheron

171

Sickness is an excluded characteristic

Barnett v Chelsea and Kensington Hospital

172

Two mothers giving birth, brain damage to one not helped

DA v North East London Strategic HA

173

'Unanswerable statutory defence' - as long as D complied with limit set by P, reasonably entitled to believe they're okay, no DoC

Budden v BP Oil Ltd

174

Why does Cane believe it may not be a bad thing if tort law IS out of step with morality?

If main purpose is to compensate, no reason why moral fault should be criterion at all

175

Bolam doesn't require doctor to 'second-guess' what other professionals may think - only needs to act according to practice accepted as proper by a reasonable body of persons practicing the same art

Smith v West Yorkshire HA

176

Name at least two cases showing gravity of harm is an influencing factor for BoD

Paris v Stepney BC; Withers v Perry Chain; Haley v London Electricity Board

177

Coxall v Goodyear GB judgment

Duty on employer to dismiss even a willing employee

178

What case supports Phillips v Whiteley on nature of the task shaping standard of care?

Wells v Couper

179

What two bases for reform are there on BoD?

Medical Innovation Bill 2015; Re ipsa loquitur

180

Which case gave an exception to Bolam when negligently fail to warn of 'material risks' which is something the RP in C's position would regard as significant

Montgomery v Lanarkshire Health Board

181

D not expected to 'plough a lone furrow'

Thompson v Smith Shiprepairers

182

Hills v Potter

'Both respective and responsible and experienced in [the] particular field of medicine'

183

Oil water

The Wagon Mound (No.2)

184

Woolridge v Sumner general

Horseman and cameraman

185

Honore on RP standard

Effectively imposes strict liability on those physically/mentally unable to reach RP standard

186

Name at least two cases on cost of precautions as an influencing factor for BoD

Latimer v AEC; Withers v Perry Chain; Coxall v Goodyear GB

187

Body of opinion needs to be 'responsible' with a 'logical basis' and need to show EXPERTS have weighed up risks and benefits of treatment

Bolitho v City and Hackney Health Authority

188

Baker v Quantum Clothing Group judgment

Used broad regulatory context to indicate descriptively what those in the industry knew about deafness at X time when examining 'fault'

189

Who said it would require a v basic error or logical inconsistency for court to be sufficiently versed to challenge what was done under Bolitho test

L&O

190

Full reasons of barrister

Mog v Pettman Smith

191

How does Lee argue externally generated norms make an important pragmatic contribution to the RP standard?

Provides info on availability and expectation of precautions

192

Crash landed plane

George v Eagle Air Services

193

Body from Bolitho can be minority

McCallister v Lewisham and North Southwark HA

194

L&O on Bolitho

Need v basic error or logical inconsistency for court to be sufficiently versed to challenge what was done

195

What case does Lee refer to in order to show D can be found to have acted reasonably despite failure to comply with regulation?

Tesco v Pollard

196

Withers v Perry Chain on cost of precautions

Employer need not stop willing employee

197

What other explanation of res ipsa loquitur does Atiyah give, which he doesn't subscribe to?

Doesn't affect burden, leaving it on C - just describes what inferences are and are not permissible

198

Chipchase v British Titan Products general

Narrow platform 6" higher

199

Coach central reservation

Ng Chun Pui v Lee Chuen Tat

200

What case suggests even under res ipsa loquitur, burden always falls on C?

Ng Chun Pui v Lee Chuen Tat

201

Mog v Pettman Smith general

Full reasons of barrister

202

HoL - although Bolam gave scope for difference in medical opinion, judge could still find one to be negligent

Wilsher v Essex Area Health Authority

203

Blyth v Birmingham Water Works

Reasonable person test for BoD - omission to do something RP would have done, or doing something RP would not have done

204

What does Lee see the Bolam/Bolitho compromise on defence as showing?

Limiting concept of courts to second-guess medical professionals - medical guidance gives source of 'reasonableness' separate from practice

205

Firemen, special equipment but no trailer

Watt v Hertfordshire CC

206

Who argued the Learned Hand Formula Should not play a central role in examining fault as it does in the US as English law does not always rely on economic calculations

Lee

207

What two cases explore emergency as a context influencing whether X was a breach of duty?

Watt v Hertfordshire CC; King v Sussex Ambulance

208

Why does Mulheron argue Bolitho turned Bolam on its axis?

Made court final arbiter of medical breach, not medical profession

209

If there is a significant risk which would affect normal person's judgment, normal responsibility of doctor to inform patient

Pearce v United Bristol Healthcare

210

Employer need not stop willing employee

Withers v Perry Chain

211

How did Muleron see Bolitho as introducing asymmetry between litigious challenges facing V and D?

V has to prove doctor's evidence is illogical, AND that their evidence withstands logical analysis, whilst doctor only has to do the latter

212

Scott v London and St Katherine Dock

If accident usually avoided in proper course of things, reasonable evidence accident arose for want of care

213

LJ Buxton in King v Sussex Ambulance

Expressed concern as D had to suffer due to D's purpose, and would not be the same for private companies

214

If D professes a special skill, held to professional person with that skill

Maynard v West Midlands Regional Health

215

Wells v Couper judgment

Standard of amateur carpenter, not professional, but might have been higher depending on nature of task (e.g. not an amateur job like a door knob)

216

Unknown disability is an allowed characteristic

Mansfield v Weetabix Ltd

217

Great dane, hector

Whippey v Jones

218

12 year old, sexually abused, senior priests

Mage v Trustees of the Birmingham Archdiocese of the Roman Catholic Church

219

Who said RP standard is essentially strict liability for those physically/mentally unable to reach RP standard?

Honore

220

How does Mulheron argue factors under Bolitho go to more than a matter of credibility?

Close examination needed of why experts advocate certain diagnoses and treatment which has nothing to do with credibility (e.g. weighing risks and benefits)

221

What judge in Condon v Basi said a higher degree of care is required of a professional player, e.g. footballer

Sir John Donaldson MR

222

Who said the Learned Hand Formula ensures there is only economically efficient liability?

Posner

223

Blake v Galloway judgment

Lower standard of care as similar to a game - lower than if V had just been walking by

224

Thompson v Smith Shiprepairers judgment

Noise considered inescapable part of shipyard life until 1970s

225

Why does Cane argue liability insurance exists?

Because tort law does not pay attention to the means of the tortfeasor

226

What does the case of Pearce focus on?

Focused on reasonable patient's interests instead of doctor

227

jeweller, ear, infection

Phillips v Whiteley (William) Ltd

228

CoA found cricket club liable despite Bolton

Miller v Jackson

229

What case shows precautions can run counter to Cs wishes to protect C?

Coxall v Goodyear GB

230

Widdowson v Newgate Meat Corp general

Mental disorder, dual carriageway

231

How can one reconcile Mog v Pettman Smith and Montgomery v Lanarkshire?

See medical cases as unique, separate category for physical injury/damage

232

Ng Chun Pui v Lee Chuen Tat judgment

Burden ALWAYS falls on C (res ipsa loquitur)

233

What does Lee argue about the hierarchy between tort and regulation?

No simple hierarchy

234

What does Atiyah believe about res ipsa loquitur?

Represents distinct rule of law, allowing burden to fall on D

235

What judge in The Wagon Mound (No.2) rejected Bolton means always justifiable to neglect risk of small magnitude?

Lord Reid

236

Narrow platform 6" higher

Chipchase v British Titan Products

237

Medical Innovation Bill 2015 was proposed by who?

Lord Saatchi

238

What does Cane call the requirement of fault in BoD?

'magic talisman' - once established 'all shall be given to the injured party'

239

Shakoor v Situ judgment

Not assessed by orthodox medicine standards, but also not enough to show degree of skill appropriate to his art because (1) holds himself out as competent, (2) duty to ensure remedy not harmful and (3) satisfy himself no adverse report on medical journals

240

What judge came up with the Learned Hand formula?

Learned Hand J

241

Mage v Trustees of the Birmingham Archdiocese of the Roman Catholic Church judgment

Applied historic standards of 1974 to find not negligent as institutional sexual abuse was not regarded as widespread at the time

242

Chipchase v British Titan Products judgment

CoA said irrelevant if you could show a standard almost applies to an activity

243

Condon v Basi judgment

Modify standard according to status of sporting activity

244

Learner driver

Nettleship v Weston

245

Conveyancing solicitors

Edward Wong Finance v Johnson Stokes

246

'Logical basis' may not apply to high-risk transactions as 'not readily analysed in terms of logic'

Paratus AMC v Countrywide Surveyors

247

In what case did the HoL put a 'gloss' on Bolam?

Bolitho v City and Hackney Health Authority

248

Paris v Stepney BC judgment

Unanimous that gravity is a relevant consideration, but majority highlight how needed to take account of Vs personal situation and how grave it would be to them in particular

249

What difficulty does Cane find with omission and morality?

Hard to equate legal liability with moral fault in the case of omission

250

Name two cases which applied Bolitho to category of question of resources and conflicts of duty

Garcia v St Mary's NHS Trust; DA v North East London Strategic HA

251

Law doesn't require PERFECTION - just reasonableness, so exercise of clinical judgment need not reduce risk to 0

Garcia v St Mary's NHS Trust

252

What system does Cane suggest to deal with the fact fault principle pays little attention to conduct/needs of V?

'Fault system' based on fault of injured person alone, as current system ignores Vs needs, just as it ignores D financial capacity

253

Tomlinson v Congleton BC judgment

Hoffmann highlighted costs of compensation culture are both pecuniary AND general undermining of personal autonomy; Scott said deprivation of liberty would result in a 'great and dull safety regime'

254

Paratus AMC v Countrywide Surveyors judgment

'Logical basis' may not apply to high-risk transactions as 'not readily analysed in terms of logic'

255

What case under sport suggested nature of activity influences 'reasonable care'?

Woolridge v Sumner

256

Latimer v AEC judgment

Take into account financial consequences

257

Mage v Trustees of the Birmingham Archdiocese of the Roman Catholic Church general

12 year old, sexually abused, senior priests

258

Disinfectant and anaesthetic glass vials

Roe v Minister of Health

259

What difficulty does Cane find with empirical evidence and morality on fault principle?

Thinking someone is morally responsible is neither necessary nor sufficient for thinking person should pay compensation - not based on popular conception, but, e.g. injured workers likely to think their employer should pay, even w/o fault

260

What case does the judgment in Mog v Pettman Smith conflict with?

Montgomery v Lanarkshire Health Board

261

Pregnant, diabetic and short

Montgomery v Lanarkshire Health Board

262

Employee secondary exposure to asbestos

Smith v P & O

263

George v Eagle Air Services general

Crash landed plane

264

George v Eagle Air Services judgment

Aircraft do not usually crash so pilot was reasonably expected to explain why it did for res ipsa loquitur

265

What case gave three possible approaches to test for BoD?

Bolton v Stone

266

Withers v Perry Chain judgment

Unusual susceptibility to injury through allergy needed to be considered for gravity of harm

267

Who explained why a particular level of skill could not be taken account of in Nettleship v Weston and what was the reasoning?

LJ Megaw - would require specific reflection of experience which is too difficult

268

Moran on RP

Personification of reasonable care has caused RP to have more and more of Ds characteristics, as long as 'normal', which can be used to justify discrimination

269

Fleming on Bolam

Bolam test is 'over protective' by making doctor's evidence conclusive on breach

270

ECT broken bones

Bolam v Friern Hospital Management Committee

271

Compensation Act 2006 was G response to what?

PERCEIVED compensation culture

272

Watt v Hertfordshire CC judgment

Purpose was to save people, so take this into account leading to a lower standard of care

273

Garcia v st Mary's NHS Trust on weighing costs and benefits

Law doesn't require PERFECTION - just reasonableness, so exercise of clinical judgment need not reduce risk to 0

274

Who delivered the dissenting judgment in Paris v Stepney BC?

Simonds and Morton

275

Malignant insulinoma

Mansfield v Weetabix Ltd

276

How does Mullin v Richards conflict with Nettleship?

Allowing experience (of life) to be taken into account

277

What case shows how little precedential value BoD decisions have?

Miller v Jackson

278

Statutory defence if supplier/producer/manufacturer could not have reasonably avoided the risk due to lack of medical/scientific knowledge at the time

Part 1 of the Consumer Protection Act 1987

279

Who called Brown LJ's approach in Coxall v Goodyear GB 'the nursemaid school of negligence'?

savory v Holland

280

Nettleship v Weston judgment

Can't take any particular lack of skill into account

281

Mullin v Richards general

15 year old schoolgirls, plastic

282

What judge in what case highlighted costs of compensation culture are both pecuniary AND general undermining of personal autonomy

Hoffmann Tomlinson v Congleton BC

283

What case suggested bolam places medical profession 'above the law'?

Hajgato v London Health Association

284

Particular lack of skill is an excluded characteristics

Nettleship v Weston

285

What does Lee argue about the Learned Hand Formula?

Should not play a central role in examining fault as it does in the US as English law does not always rely on economic calculations

286

Morton v William Dixon

Two principles for negligence of employer through fault of omission (per lord Dunedin in Scots Court of Cession)

287

What argument against fault principle does Cane believe means tort law more concerned with V than criminal?

Bears no relation to degree of fault

288

Why does Cane believe liability insurance interferes with fault principle?

Relieves faulty person of burden to pay

289

What case suggested the standard of care is modified according to status of sporting activity (i.e. little league, professional league)

Condon v Basi

290

Khou v Gunapathy general

Singapore CoA

291

Martin on RP

'Reasonableness' inevitably reflects male perspective because it's a construct of patriarchal society and thus should be discarded

292

McCallister v Lewisham and North Southwark HA

Body from Bolitho can be minority

293

What did the court in Mansfield v Weetabix Ltd say about if D had known about his disability?

RP would have taken precautions/not driven

294

How to reconcile Phillips v Whiteley (William) Ltd with Nettleship?

Tried to raise standard above 'normal' standard to medical equipment, rather than trying to drop it below normal standard (as in Nettleship)

295

Name at least two cases on sport as being a context which is an influencing factor?

Woolridge v Sumner; Condon v Basi; Smeldon v Whitworth; Blake v Galloway

296

For what two reasons is it necessary to consider common practice in industrial sphere and rules/regulations of relevant profession when considering need to take precautions?

Shouldn't expect D to 'plough a lone furrow' and to reflect court's limited expertise

297

Scott on Bolitho

Applauded it for challenging autonomy of medical profession

298

Widdowson v Newgate Meat Corp judgment

If neither give evidence, D cannot rebut inference from maxim of res ipsa loquitur

299

No swimming, dangerous water

Tomlinson v Congleton BC

300

Smith v P & O judgment

Reasonable employer wouldn't have known danger to those not directly involved with asbestos in 1971

301

How do L&O interpret Condon v Basi and why?

Paraphrasing of ordinary standard of negligence, rather than a new standard, or would lead to 'unnecessary complication'

302

Bolam applies to any profession requiring a special skill/knowledge/experience

Gold v Haringey Health Authority

303

What is the case on social utility as an influencing factor?

Tomlinson v Congleton BC

304

Name at least two cases on likelihood of damage as an influencing factor for BoD

Bolton v Stone; The Wagon Mound; Whippey v Jones

305

What is the substance of the test in Blyth v Birmingham Water Works?

Normative rather than descriptive test

306

What three reasons were given for why it is not enough to show degree of skill appropriate to the art of alternative medicine, and in what case?

Shakoor v Situ - (1) holds himself out as competent, (2) duty to ensure remedy not harmful and (3) satisfy himself no adverse report on medical journals

307

What judge in what case said deprivation of liberty would result in a 'great and dull safety regime'

Scott Tomlinson v Congleton BC

308

15 year old schoolgirls, plastic

Mullin v Richards

309

What did the judgment in Woolridge v Sumner suggest?

Nature of activity influences 'reasonable care' - e.g. to win

310

What two cases does Lee refer to in order to show how tort standard 'clearly' goes beyond regulatory standard?

Baker v Quantum Clothing Group; Jeromson

311

Sidaway v Board of Governors of Bethlem

Bolam applies to question of amount of info a medical practitioner needs to give to patient on risks

312

How does Lee suggest tort is able to support statute?

Steps in when official enforcement of regulations is weak, but tort court need not conclude regulation has failed before moving beyond it

313

What academic stated Compensation Act 2006 is 'notoriously uncertain as to its effect and purpose'

Lee

314

Name two cases showing excluded characteristics for BoD?

Nettleship v Weston and Barnett v Chelsea and Kensington Hospital

315

Savory v Holland

brown LJ's approach in Coxall v Goodyear GB was the 'nursemaid school of negligence'

316

Name three relevant statutes on BoD

Compensation Act 2006 section 1; Social Responsibility and Heroism Act 2015; Consumer Protection Act 1987 Part 1

317

The Wagon Mound (No.2) judgment

Lord Reid rejected that Bolton means always justifiable to neglect risk of small magnitude - foreseeability is always a question of degree

318

What case does Mullin v Richards conflict with?

Nettleship v Weston

319

Miller v Jackson general

CoA found cricket club liable despite Bolton

320

Who applauded Bolitho for challenging autonomy of medical profession?

Scott

321

what case stated rugby matches are 'obviously desirable activity' despite lack of definition on 'desirable activity'?

Sutton v Syston Rugby Football Club

322

Shakoor v Situ general

Chinese herbal

323

What judge gave two principles for negligence of employer through fault of omission and in what case?

Morton v William Dixon Lord Dunedin in Scots Court of Cession

324

No compliance with voluntary standard regulation was still fine but caution in drawing hard lines between voluntary and mandatory standards

Tesco v Pollard

325

Brown v Rolls Royce general

Dermatitis, oil machine, barrier cream

Decks in Law Second Year Class (62):