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Law Second Year > Tort Law - Breach of Duty > Flashcards

Tort Law - Breach of Duty Flashcards

1
Q

Bolton v Stone general

A

Cricket club

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2
Q

Mansfield v Weetabix Ltd general

A

Malignant insulinoma

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3
Q

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

A

Factors laid down therein were already considered under common law

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4
Q

Barnett v Chelsea and Kensington Hospital JUDGMENT

A

Do not take sickness into account

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5
Q

Part 1 of the Consumer Protection Act 1987

A

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

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6
Q

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

A

LJ Salmond

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7
Q

What two disadvantages to the Learned Hand Formula are there?

A

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

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8
Q

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

A

Wither v Perry Chain

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9
Q

Condon v Basi per Sir John Donaldson MR

A

Higher degree of care required by a professional player

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10
Q

Mullin v Richards judgment

A

Allow attribution of age and maybe even gender

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11
Q

Hucks v Cole judgment

A

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

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12
Q

Mustill J in Thompson v Smith Shiprepairers

A

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

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13
Q

Thompson v Smith Shiprepairers

A

D not expected to ‘plough a lone furrow’

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14
Q

Wells v Couper general

A

Door knoc

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15
Q

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?

A

The Wagon Mound (No.2)

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16
Q

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

A

‘Development risks’ defence

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17
Q

What case explored the standard expected of alternative medicine?

A

Shakoor v Situ

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18
Q

What did Compensation Act 2006 do?

A

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

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19
Q

Phillips v Whiteley (William) Ltd general

A

jeweller, ear, infection

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20
Q

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

A

Chipchase v British Titan Products

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21
Q

Bolam v Friern Hospital Management Committee general

A

ECT broken bones

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22
Q

Paris v Stepney BC general

A

One eye, goggles, nail

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23
Q

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

A

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

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24
Q

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

A

Hucks v Cole

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25
Q

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

A

Benmax v Austin Motor

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26
Q

L&O on Paris v Stepney BC

A

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

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27
Q

Sikh wedding, egg

A

Haley v London Electricity Board

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28
Q

Whipper v Jones judgment

A

Not foreseeable so not negligent

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29
Q

Baker v Quantum Clothing Group

A

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

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30
Q

Edward Wong Finance v Johnson Stokes general

A

Conveyancing solicitors

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31
Q

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

A

L&O

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32
Q

Knee plastic flag

A

Sutton v Syston Rugby Football Club

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33
Q

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

A

Ratcliffe v Plymouth

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34
Q

What is the Learned Hand Formula?

A

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

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35
Q

Phillips v Whiteley (William) Ltd judgment

A

Reasonable care shaped by nature of task

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36
Q

Name five influencing factors for BoD

A

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

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37
Q

Leamington spa, broken leg

A

Condon v Basi

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38
Q

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

A

Bolton v Stone

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39
Q

Where was the basic test set down for BoD?

A

Blyth v Birmingham Water Works

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40
Q

What does Mulheron argue about the applicability of Bolitho?

A

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

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41
Q

What does res ipsa loquitur mean?

A

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

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42
Q

Mansfield v Weetabix Ltd judgment

A

Allow unknown disability to be taken account of

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43
Q

The ‘Learned Hand’ formula comes from what case?

A

United States v Carroll Towing

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44
Q

Sutton v Syston Rugby Football Club general

A

Knee plastic flag

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45
Q

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

A

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

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46
Q

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

A

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)

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47
Q

What does Medical Innovation Bill 2015 propose?

A

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

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48
Q

DA v North East London Strategic HA general

A

Two mothers giving birth, brain damage to one not helped

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49
Q

Khou v Gunapathy judgment

A

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

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50
Q

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

A

External standards by experts in a wide range of areas

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51
Q

King v Sussex Ambulance judgment

A

Altruistic purpose made them not liable

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52
Q

Gold v Haringey Health Authority

A

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

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53
Q

Whippey v Jones general

A

Great dane, hector

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54
Q

Brown v Rolls Royce judgment

A

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

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55
Q

Why did Lord Saatchi propose Medical Innovation Bill 2015?

A

Believed Bolam encourages doctors to act conservatively and not be experimental

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56
Q

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

A

Part 1 of the Consumer Protection Act 1987

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57
Q

What was one of the last jury cases?

A

Bolam v Friern Hospital Management Committee

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58
Q

Sub-prime mortgage, 90% of property value

A

Paratus AMC v Countrywide Surveyors

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59
Q

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

A

Edward Wong Finance v Johnson Stokes

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60
Q

Decide reasonable care by nature of task

A

Phillips v Whiteley (William) Ltd

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61
Q

Roe v Minister of Health general

A

Disinfectant and anaesthetic glass vials

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62
Q

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

A

Palmer v Cornwall CC

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63
Q

Barnett v Chelsea and Kensington Hospital general

A

Tea, arsenic, doctor ill

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64
Q

Industrial deafness, knitting mills

A

Baker v Quantum Clothing Group

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65
Q

Withers v Perry Chain general

A

Allergy, barrier cream

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66
Q

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

A

Hills v Potter

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67
Q

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

A

Greater probability of foreseeable harm

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68
Q

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

A

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

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69
Q

Door knob

A

Wells v Couper

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70
Q

Tesco v Pollard

A

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

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71
Q

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

A

Martin

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72
Q

Nettleship v Weston general

A

Learner drivers

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73
Q

Smeldon v Whitworth general

A

Collapsed rugby scrum

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74
Q

United States v Carroll Towing general

A

‘learned hand’ formula

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75
Q

What does Cane argue Bolton v Stone shows?

A

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

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76
Q

Smeldon v Whitworth judgment

A

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

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77
Q

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

A

Bolton v Stone

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78
Q

Ratcliffe v Plymouth

A

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)

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79
Q

Who highlighted the ‘time dimension’ of negligence?

A

L&O

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80
Q

Hucks v Cole general

A

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

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81
Q

Coxall v Goodyear GB general

A

‘nursemaid school of negligence’

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82
Q

Blake v Galloway general

A

Bark in eye

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83
Q

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

A

King v Sussex Ambulance - LJ Buxton

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84
Q

Bolitho v City and Hackney Health Authority

A

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

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85
Q

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

A

Smeldon v Whitworth

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86
Q

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

A

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

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87
Q

Baker v Quantum Clothing Group general

A

Industrial deafness, knitting mills

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88
Q

From what jurisdiction is the Learned Hand formula?

A

America

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89
Q

Horseman and cameraman

A

Woolridge v Sumner

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90
Q

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

A

Brown v Rolls Royce

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91
Q

Bark in eye

A

Blake v Galloway

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92
Q

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

A

Thompson v Smith Shiprepairers; Bolam/Bolitho compromise

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93
Q

Maynard v West Midlands Regional Health

A

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

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94
Q

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

A

Maynard v West Midlands Regional Health Authority

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95
Q

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

A

Inappropriate to take them into account

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96
Q

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

A

Baker v Quantum Clothing Group

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97
Q

Roe v Minister of Health judgment

A

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

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98
Q

Weinrib

A

‘Cost of precautions is irrelevant’ in English law

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99
Q

Haley v London Electricity Board

A

Sikh wedding, egg

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100
Q

Montgomery v Lanarkshire Health Board judgment

A

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

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101
Q

Latimer v AEC general

A

Flooding, sawdust, close factory

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102
Q

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

A

Sidaway v Board of Governors of Bethlem

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103
Q

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

A

Khou v Gunapathy

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104
Q

Wilsher v Essex Area Health Authority

A

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

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105
Q

Pearce v United Bristol Healthcare

A

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.

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106
Q

LJ Salmond in Nettleship v Weston

A

Thought skill should matter

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107
Q

King v Sussex Ambulance general

A

Paramedic fell helping patient from home to ambulance

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108
Q

Dermatitis, oil machine, barrier cream

A

Brown v Rolls Royce

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109
Q

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

A

Morris

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110
Q

Paramedic fell helping patient from home to ambulance

A

King v Sussex Ambulance

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111
Q

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

A

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

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112
Q

Benmax v Austin Motor

A

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

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113
Q

Palmer v Cornwall CC

A

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

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114
Q

Edward Wong Finance v Johnson Stokes according to L&O

A

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

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115
Q

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

A

Lord Reid in Bolton v Stone

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116
Q

Lee on Compensation Act 2006

A

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

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117
Q

Cricket club

A

Bolton v Stone

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118
Q

What approach to BoD was rejected in Bolton v Stone

A

Foreseeability

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119
Q

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

A

Coxall v Goodyear GB; Withers v Perry Chain

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120
Q

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

A

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

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121
Q

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

A

Moran

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122
Q

Age is an allowed characteristic, and maybe even gender

A

Mullin v Richards

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123
Q

Sutton v Syston Rugby Football Club judgment

A

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

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124
Q

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

A

George v Eagle Air Services

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125
Q

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

A

Only requires courts to have regard to factors

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126
Q

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

A

Lee

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127
Q

Who highlighted the ‘“Cloggers’ Charter’ so higher league players need take more care even when playing with lower league

A

Geary

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128
Q

Mental disorder, dual carriageway

A

Widdowson v Newgate Meat Corp

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129
Q

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

A

Scott v London and St Katherine Dock

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130
Q

Paratus AMC v Countrywide Surveyors general

A

Sub-prime mortgage, 90% of property value

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131
Q

Why should the Learned Hand formula be rejected?

A

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

132
Q

What did the minority in Paris v Stepney BC say?

A

Serious accident regardless of Vs number of eyes

133
Q

Tomlinson v Congleton BC general

A

No swimming, dangerous water

134
Q

Mog v Pettman Smith judgment

A

No need to give full reasons

135
Q

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

A

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
Q

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

A

Lord Reid in Bolton

137
Q

Social Responsibility and Heroism Act 2015

A

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

138
Q

United States v Carroll Towing judgment

A

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

139
Q

Why is the precedential value of BoD decisions so low?

A

Factually specific cases

140
Q

Morris on Compensation Act 2006

A

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

141
Q

What Bill has Lord Saatchi proposed?

A

Medical Innovation Bill 2015

142
Q

What judge sat on both Bolton and Latimer v AEC?

A

Lord Reid

143
Q

Who said ‘cost of precautions is irrelevant’ in English law?

A

weinrib

144
Q

Condon v Basi general

A

Leamington spa, broken leg

145
Q

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

A

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
Q

Montgomery v Lanarkshire Health Board general

A

Pregnant, diabetic and short

147
Q

The Wagon Mound (No.2) general

A

Oil water

148
Q

Watt v Hertfordshire CC general

A

Firemen, special equipment but no trailer

149
Q

Smith v West Yorkshire HA

A

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
Q

Bolam v Friern Hospital Management Committee judgment

A

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
Q

Woolridge v Sumner judgment

A

Needed recklessness of rider to breach (Diplock LJ)

152
Q

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

A

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

153
Q

Bolton v Stone judgment

A

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

154
Q

Maynard v West Midlands Regional Health Authority on Bolam

A

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

155
Q

Garcia v St Mary’s NHS Trust judgment

A

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

156
Q

Which case used Bolitho to extend Sidaway on informing patients?

A

Pearce v United Bristol Healthcare

157
Q

Collapsed rugby scrum

A

Smeldon v Whitworth

158
Q

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

A

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

159
Q

Ng Chun Pui v Lee Chuen Tat general

A

Coach central reservation

160
Q

Flooding, sawdust, close factory

A

Latimer v AEC

161
Q

Geary on Condon v Basi

A

‘“Cloggers’ Charter’ so higher league players need take more care even when playing with lower league

162
Q

Smith v P & O general

A

Employee secondary exposure to asbestos

163
Q

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

A

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

164
Q

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

A

Widdowson v Newgate Meat Corp

165
Q

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

A

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

166
Q

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

A

Social utility, sport and emergency

167
Q

What act referred to but didn’t define ‘desirable activity’?

A

Compensation Act 2006

168
Q

Posner on learned hand formula

A

Economic analysis of law, only leading to economically efficient liability

169
Q

Hajgato v London Health Association

A

Bolam places medical profession ‘above the law’

170
Q

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

A

Mulheron

171
Q

Sickness is an excluded characteristic

A

Barnett v Chelsea and Kensington Hospital

172
Q

Two mothers giving birth, brain damage to one not helped

A

DA v North East London Strategic HA

173
Q

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

A

Budden v BP Oil Ltd

174
Q

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

A

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

175
Q

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

A

Smith v West Yorkshire HA

176
Q

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

A

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

177
Q

Coxall v Goodyear GB judgment

A

Duty on employer to dismiss even a willing employee

178
Q

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

A

Wells v Couper

179
Q

What two bases for reform are there on BoD?

A

Medical Innovation Bill 2015; Re ipsa loquitur

180
Q

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

A

Montgomery v Lanarkshire Health Board

181
Q

D not expected to ‘plough a lone furrow’

A

Thompson v Smith Shiprepairers

182
Q

Hills v Potter

A

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

183
Q

Oil water

A

The Wagon Mound (No.2)

184
Q

Woolridge v Sumner general

A

Horseman and cameraman

185
Q

Honore on RP standard

A

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

186
Q

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

A

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

187
Q

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

A

Bolitho v City and Hackney Health Authority

188
Q

Baker v Quantum Clothing Group judgment

A

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

189
Q

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

A

L&O

190
Q

Full reasons of barrister

A

Mog v Pettman Smith

191
Q

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

A

Provides info on availability and expectation of precautions

192
Q

Crash landed plane

A

George v Eagle Air Services

193
Q

Body from Bolitho can be minority

A

McCallister v Lewisham and North Southwark HA

194
Q

L&O on Bolitho

A

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

195
Q

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

A

Tesco v Pollard

196
Q

Withers v Perry Chain on cost of precautions

A

Employer need not stop willing employee

197
Q

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

A

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

198
Q

Chipchase v British Titan Products general

A

Narrow platform 6” higher

199
Q

Coach central reservation

A

Ng Chun Pui v Lee Chuen Tat

200
Q

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

A

Ng Chun Pui v Lee Chuen Tat

201
Q

Mog v Pettman Smith general

A

Full reasons of barrister

202
Q

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

A

Wilsher v Essex Area Health Authority

203
Q

Blyth v Birmingham Water Works

A

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

204
Q

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

A

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

205
Q

Firemen, special equipment but no trailer

A

Watt v Hertfordshire CC

206
Q

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

A

Lee

207
Q

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

A

Watt v Hertfordshire CC; King v Sussex Ambulance

208
Q

Why does Mulheron argue Bolitho turned Bolam on its axis?

A

Made court final arbiter of medical breach, not medical profession

209
Q

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

A

Pearce v United Bristol Healthcare

210
Q

Employer need not stop willing employee

A

Withers v Perry Chain

211
Q

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

A

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
Q

Scott v London and St Katherine Dock

A

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

213
Q

LJ Buxton in King v Sussex Ambulance

A

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

214
Q

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

A

Maynard v West Midlands Regional Health

215
Q

Wells v Couper judgment

A

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
Q

Unknown disability is an allowed characteristic

A

Mansfield v Weetabix Ltd

217
Q

Great dane, hector

A

Whippey v Jones

218
Q

12 year old, sexually abused, senior priests

A

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

219
Q

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

A

Honore

220
Q

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

A

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
Q

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

A

Sir John Donaldson MR

222
Q

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

A

Posner

223
Q

Blake v Galloway judgment

A

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

224
Q

Thompson v Smith Shiprepairers judgment

A

Noise considered inescapable part of shipyard life until 1970s

225
Q

Why does Cane argue liability insurance exists?

A

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

226
Q

What does the case of Pearce focus on?

A

Focused on reasonable patient’s interests instead of doctor

227
Q

jeweller, ear, infection

A

Phillips v Whiteley (William) Ltd

228
Q

CoA found cricket club liable despite Bolton

A

Miller v Jackson

229
Q

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

A

Coxall v Goodyear GB

230
Q

Widdowson v Newgate Meat Corp general

A

Mental disorder, dual carriageway

231
Q

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

A

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

232
Q

Ng Chun Pui v Lee Chuen Tat judgment

A

Burden ALWAYS falls on C (res ipsa loquitur)

233
Q

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

A

No simple hierarchy

234
Q

What does Atiyah believe about res ipsa loquitur?

A

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

235
Q

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

A

Lord Reid

236
Q

Narrow platform 6” higher

A

Chipchase v British Titan Products

237
Q

Medical Innovation Bill 2015 was proposed by who?

A

Lord Saatchi

238
Q

What does Cane call the requirement of fault in BoD?

A

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

239
Q

Shakoor v Situ judgment

A

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
Q

What judge came up with the Learned Hand formula?

A

Learned Hand J

241
Q

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

A

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

242
Q

Chipchase v British Titan Products judgment

A

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

243
Q

Condon v Basi judgment

A

Modify standard according to status of sporting activity

244
Q

Learner driver

A

Nettleship v Weston

245
Q

Conveyancing solicitors

A

Edward Wong Finance v Johnson Stokes

246
Q

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

A

Paratus AMC v Countrywide Surveyors

247
Q

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

A

Bolitho v City and Hackney Health Authority

248
Q

Paris v Stepney BC judgment

A

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
Q

What difficulty does Cane find with omission and morality?

A

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

250
Q

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

A

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

251
Q

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

A

Garcia v St Mary’s NHS Trust

252
Q

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

A

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

253
Q

Tomlinson v Congleton BC judgment

A

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
Q

Paratus AMC v Countrywide Surveyors judgment

A

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

255
Q

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

A

Woolridge v Sumner

256
Q

Latimer v AEC judgment

A

Take into account financial consequences

257
Q

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

A

12 year old, sexually abused, senior priests

258
Q

Disinfectant and anaesthetic glass vials

A

Roe v Minister of Health

259
Q

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

A

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
Q

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

A

Montgomery v Lanarkshire Health Board

261
Q

Pregnant, diabetic and short

A

Montgomery v Lanarkshire Health Board

262
Q

Employee secondary exposure to asbestos

A

Smith v P & O

263
Q

George v Eagle Air Services general

A

Crash landed plane

264
Q

George v Eagle Air Services judgment

A

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

265
Q

What case gave three possible approaches to test for BoD?

A

Bolton v Stone

266
Q

Withers v Perry Chain judgment

A

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

267
Q

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

A

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

268
Q

Moran on RP

A

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
Q

Fleming on Bolam

A

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

270
Q

ECT broken bones

A

Bolam v Friern Hospital Management Committee

271
Q

Compensation Act 2006 was G response to what?

A

PERCEIVED compensation culture

272
Q

Watt v Hertfordshire CC judgment

A

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

273
Q

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

A

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

274
Q

Who delivered the dissenting judgment in Paris v Stepney BC?

A

Simonds and Morton

275
Q

Malignant insulinoma

A

Mansfield v Weetabix Ltd

276
Q

How does Mullin v Richards conflict with Nettleship?

A

Allowing experience (of life) to be taken into account

277
Q

What case shows how little precedential value BoD decisions have?

A

Miller v Jackson

278
Q

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

A

Part 1 of the Consumer Protection Act 1987

279
Q

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

A

savory v Holland

280
Q

Nettleship v Weston judgment

A

Can’t take any particular lack of skill into account

281
Q

Mullin v Richards general

A

15 year old schoolgirls, plastic

282
Q

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

A

Hoffmann Tomlinson v Congleton BC

283
Q

What case suggested bolam places medical profession ‘above the law’?

A

Hajgato v London Health Association

284
Q

Particular lack of skill is an excluded characteristics

A

Nettleship v Weston

285
Q

What does Lee argue about the Learned Hand Formula?

A

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
Q

Morton v William Dixon

A

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

287
Q

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

A

Bears no relation to degree of fault

288
Q

Why does Cane believe liability insurance interferes with fault principle?

A

Relieves faulty person of burden to pay

289
Q

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

A

Condon v Basi

290
Q

Khou v Gunapathy general

A

Singapore CoA

291
Q

Martin on RP

A

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

292
Q

McCallister v Lewisham and North Southwark HA

A

Body from Bolitho can be minority

293
Q

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

A

RP would have taken precautions/not driven

294
Q

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

A

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

295
Q

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

A

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

296
Q

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?

A

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

297
Q

Scott on Bolitho

A

Applauded it for challenging autonomy of medical profession

298
Q

Widdowson v Newgate Meat Corp judgment

A

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

299
Q

No swimming, dangerous water

A

Tomlinson v Congleton BC

300
Q

Smith v P & O judgment

A

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

301
Q

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

A

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

302
Q

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

A

Gold v Haringey Health Authority

303
Q

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

A

Tomlinson v Congleton BC

304
Q

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

A

Bolton v Stone; The Wagon Mound; Whippey v Jones

305
Q

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

A

Normative rather than descriptive test

306
Q

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?

A

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
Q

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

A

Scott Tomlinson v Congleton BC

308
Q

15 year old schoolgirls, plastic

A

Mullin v Richards

309
Q

What did the judgment in Woolridge v Sumner suggest?

A

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

310
Q

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

A

Baker v Quantum Clothing Group; Jeromson

311
Q

Sidaway v Board of Governors of Bethlem

A

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

312
Q

How does Lee suggest tort is able to support statute?

A

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

313
Q

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

A

Lee

314
Q

Name two cases showing excluded characteristics for BoD?

A

Nettleship v Weston and Barnett v Chelsea and Kensington Hospital

315
Q

Savory v Holland

A

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

316
Q

Name three relevant statutes on BoD

A

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

317
Q

The Wagon Mound (No.2) judgment

A

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

318
Q

What case does Mullin v Richards conflict with?

A

Nettleship v Weston

319
Q

Miller v Jackson general

A

CoA found cricket club liable despite Bolton

320
Q

Who applauded Bolitho for challenging autonomy of medical profession?

A

Scott

321
Q

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

A

Sutton v Syston Rugby Football Club

322
Q

Shakoor v Situ general

A

Chinese herbal

323
Q

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

A

Morton v William Dixon Lord Dunedin in Scots Court of Cession

324
Q

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

A

Tesco v Pollard

325
Q

Brown v Rolls Royce general

A

Dermatitis, oil machine, barrier cream

Law Second Year (62 decks)

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