Tort Law - Breach of Duty Flashcards
(325 cards)
1
Q
Bolton v Stone general
A
Cricket club
2
Q
Mansfield v Weetabix Ltd general
A
Malignant insulinoma
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
4
Q
Barnett v Chelsea and Kensington Hospital JUDGMENT
A
Do not take sickness into account
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
6
Q
Who in minority in Nettleship v Weston thought skill should matter?
A
LJ Salmond
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
8
Q
Unusual susceptibility to injury through allergy needed to be considered for gravity of harm
A
Wither v Perry Chain
9
Q
Condon v Basi per Sir John Donaldson MR
A
Higher degree of care required by a professional player
10
Q
Mullin v Richards judgment
A
Allow attribution of age and maybe even gender
11
Q
Hucks v Cole judgment
A
Negligent despite others would have done same as easily avoidable and taught in prelim stages of medicine
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’
13
Q
Thompson v Smith Shiprepairers
A
D not expected to ‘plough a lone furrow’
14
Q
Wells v Couper general
A
Door knoc
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)
16
Q
What defence is found in Part 1 Consumer Protection Act 1987?
A
‘Development risks’ defence
17
Q
What case explored the standard expected of alternative medicine?
A
Shakoor v Situ
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
19
Q
Phillips v Whiteley (William) Ltd general
A
jeweller, ear, infection
20
Q
CoA said irrelevant if you could show a standard almost applies to an activity
A
Chipchase v British Titan Products
21
Q
Bolam v Friern Hospital Management Committee general
A
ECT broken bones
22
Q
Paris v Stepney BC general
A
One eye, goggles, nail
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
24
Q
Easily avoidable risk, elementary teaching, but others would have done same
A
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
