Tort Law - Introduction to Negligence Flashcards Preview

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Flashcards in Tort Law - Introduction to Negligence Deck (206):
1

What are the requirements for negligence?

D owed a duty of care to the 'foreseeable victim', the care was breached, C suffered relevant damage, the breach caused the damage and a test of proximity

2

Grant v Australian Knitting Mills judgment

Donoghue applies further than just sealed products in opaque containers - did product reach V with the same defect as when it left the manufacturer?

3

Griffiths v Arch Engineering judgment

Still DoC even if there was reasonable possibility of inspection by a 3rd party

4

Stennet v Hancock general

'By-blow' victim

5

Stennet v Hancock judgment

Duty owed even to a 'by-blow' victim, not just consumer

6

'By-blow' victim

Stennet v Hancock

7

Palsgraf v Long Island Railway general

Fireworks, train, scales

8

Fireworks, train, scales

Palsgraf v Long Island Railway

9

Palsgraf v Long Island Railway judgment

Not foresseable victim - irrelevant if guards may have owed a DoC to others around

10

Hay v Young general

Pregnant, HEARD collision, stillborn

11

Hay v Young judgment

Not foreseeable victim

12

What do L&O argue about Hay v Young?

Court used foreseeability to cover influence of policy - shock-induced damage was problematic then

13

Pregnant, heard collision, stillborn

Hay v Young

14

Haley v London Electricity Board general

Blind man, excavation

15

Haley v London Electricity Board judgment

DoC to ensure safety of all persons reasonably foreseeable, including the blind and infirm

16

L&O on Haley v London Electricity Board

Difficult to reconcile with Hay - are pregnant people less encountered? Could show gender bias in tort (Mitchell)

17

Congenital Disabilities (Civil Liability) Act 1976

P created 'foreseeable victim' - child cannot bring claim against mother for tortious conduct relating to driving

18

What Act showed P creating a 'foreseeable victim'?

Congenital Disabilities (Civil Liability) Act 1976

19

Grant v Australian Knitting Mills on breach of DoC

Malleability of fault concept, as applied even though manufacturer had done all that could be reasonably expected

20

Rothwell v Chemical & Insulating general

Pleural placques

21

Rothwell v Chemical & Insulating judgment

Need to be 'worse off' and change cannot be trivial

22

Why was the case of Rothwell v Chemical exceptional?

Courts had to consider if the injury constituted legal harm, rather than just being about proof

23

What judge in what case suggested that for damage in negligence, C needs to be 'worse off' and change cannot be trivial?

Lord Hoffman in Rothwell v Chemical & Insulating

24

Evans v Triplex Safety Glass general

Windscreen, shards

25

Evans v Triplex Safety Glass judgment

No evidence that D's negligence, present or not, caused the disintegration as opposed to other causes

26

Windscreen, shards

Evans v Triplex Safety Glass

27

What case explores if D's conduct CAUSED C's injury?

Evans v Triplex Safety Glass

28

What kind of test is applied when looking at causation in negligence?

But for factual cause

29

Burrows v March general

Defective pipe, gas fitter

30

What case explores the application of the test of proximity in negligence?

Burrows v March

31

Burrows v March judgment

Loss resulted from 3rd party recklessness directly, so no liability

32

D v East Berkshire Community Health NHS Trust, Lord Rodger

'the world is full of harm for which the law furnishes no remedy'

33

What judge in what case said that 'the world is full of harm for which the law furnishes no remedy'?

D v East Berkshire Community Health NHS Trust, per Lord Rodger

34

What quote in what case and by what judge shows that if there is no DoC, there is no action in negligence?

'the world is full of harm for which the law furnishes no remedy' - D v East Berkshire Community Health NHS Trust, per Lord Rodger

35

Who was the first academic to recognise a duty of care, and when?

Francis Buller in the middle of the 18th century

36

From what theorists did Buller borrow the idea of DoC?

Natural Law School

37

Natural Law School theory

Concern with what duties/obligations are owed as a result of being a member of society

38

What school of thought is concerned with what duties/obligations are owed as a result of being a member of society

Natural Law School

39

Winterbottom v Wright general

Drove coach for postmaster, hired from D, collapsed

40

Winterbottom v Wright judgment

Enforced privity 'lest the most absurd and outrageous consequences' ensued

41

What case showed the early development of negligence, enforcing privity 'lest the most absurd and outrageous consequences' ensued?

Winterbottom v Wright

42

Longmeid v Holliday

Exception to Winterbottom in regard to articles 'dangerous in themselves'

43

What case gave an exception to Winterbottom?

Longmeid v Holliday

44

Exception to Winterbottom in regard to articles 'dangerous in themselves'

Longmeid v Holliday

45

When was the first normative explanation of DoC in courts, and by who?

Heaven v Pender per Brett MR

46

Brett MR in Heaven v Pender

'Neglect of the use of ordinary skill or care towards a person to whom D owes the duty'

47

What judge and in what case described a DoC (early on) as 'Neglect of the use of ordinary skill or care towards a person to whom D owes the duty'?

Brett MR in Heaven v Pender

48

What was the outcome in Heaven v Pender?

Other judges rejected the argument of Brett MR on DoC

49

Le Lievre v Gould general

Brett MR tried to resuscitate DoC by suggesting only arises with physical proximity

50

What case showed Brett MR tried to resuscitate DoC by suggesting only arises with physical proximity?

Le Lievre v Gould

51

When did the courts finally expand and adopt Le Lievre?

1930s in Donoghue v Stevenson

52

How was Le Lievre adopted and expanded in Donoghue?

Into notions of closeness and proximity

53

Donoghue v Stevenson

Decomposing snail

54

What was the ratio in Donoghue v Stevenson in HoL, and on what point?

3:2 majority rejected privity of contract fallacy

55

How was the DoC defined in Donoghue?

Owed to persons who ought reasonably to have been in D's contemplation

56

How did the court distinguish from Winterbottom in Donoghue?

Said Winterbottom claim was founded on D's BoC with 3rd party, not independent tortious duty

57

Who in the minority in Donoghue focused on the floodgates argument?

Lord Buckmaster

58

When has Lord Buckmaster's floodgates argument in Donoghue been most persuasive?

In cases concerning pure economic loss

59

What did Lord Buckmaster argue in Donoghue?

The DoC principle has never succeeded in court, so how can it exist as the majority claim?

60

What moral principle did Lord Atkin inject in Donoghue?

'Good neighbourliness'

61

Who offered a 'case by case' analysis test, more pragmatic than Lord Atkin's, in Donoghue?

Lord Macmillan

62

Who said 'there must be, and is, some general conception of relations giving rise to a DoC', and in what case?

Lord Atkin

63

what did Lord Atkin look to in order to establish a DoC?

'General public sentiment'

64

How did Macmillan explain Longmeid in Donoghue?

Longmeid is not an exception but a stringent degree of diligence to ensure safety

65

Why did Macmillan believe manufacturers have a DoC to consumers?

Because they produce goods for human consumption, and are thus aware of the end result

66

What was the primary difference between Macmillan's first and second draft?

Widened to focus on English law as opposed to Scottish in second draft

67

what did Lord Tomlin argue in Donoghue?

No material from which to draw Atkin's principle, and similar principle was rejected in Winterbottom

68

Was Lord Tomlin in the majority or minority in Donoghue?

Minority

69

Lawson (academic) on Donoghue and DoC test

Focus on who you DON'T have a DoC to

70

What academic highlighted that sometimes you can cause loss to others , e.g. competing businesses, and thus better to focus on who you don't owe a DoC to?

Lawson

71

Fleming on Donoghue?

DoC is a control device to limit an otherwise vast scope of liability

72

Who saw DoC as a control device to limit an otherwise vast scope of liability?

Fleming

73

Grant v Australia Knitting Mills general

Long johns, rash

74

Weir on Grant v Australia Knitting Mills

Rate of failure was so low that manufacturer should have got a prize, not a finding of negligence

75

Who argued Rate of failure was so low in Grant that manufacturer should have got a prize, not a finding of negligence?

Weir

76

What case seems to suggest negligence isn't really fault-based, due to super low rate of failure still leading to negligence claim?

Grant v Australia Knitting Mills

77

Hedley Byrne v Heller

Donoghue does not apply to purely financial loss

78

Donoghue does not apply to purely financial loss

Hedley Byrne v Heller

79

What two cases show general development of Donoghue principles?

Hedley Byrne v Heller; Home Office v Dorset Yacht Co Ltd

80

Home Office v Dorset Yacht Co Ltd general

Character forming

81

Home Office v Dorset Yacht Co Ltd judgment

Cannot always just apply Donoghue - endorsed Atkin's speech as a 'statement of principle', not statutory definition, and incrementalist approach to DoC

82

What case stated that Donoghue should apply unless there is a justification for its exclusion?

Home Office v Dorset Yacht

83

What case endorsed Atkin's speech in Donoghue as a 'statement of principle', not a statutory definition?

Home Office v Dorset Yacht

84

Anns v Merton LBC general

Two-stage test of negligence

85

What is the test from Anns v Merton LBS very similar to?

Academic writings by Fleming and Lawson

86

Anns v Merton LBC two-stage test

Should D have had C in contemplation, and D has an opportunity to show policy reasons for no DoC

87

In what case was Anns v Merton LBC overruled?

Murphy v Brentwood District Council

88

Murphy v Brentwood District Council judgment

Overruled Anns v Merton LBC two-stage test

89

What test came after Anns v Merton LBC?

Three stage test in Caparo Industries v Dickman

90

What judge gave the three stage test in Caparo v Dickman?

Lord Bridge

91

what is the 3 stage test in Caparo?

Reasonably foreseeable C would suffer as a result of D's act, relationship of proximity and fair, just and reasonable to recognise DoC

92

How can the test from Caparo be criticised?

Tempting to say D ought to have had C in contemplation when we know C has suffered harm

93

Who argued that proximity in Caparo, despite being under its own heading, was not a separate ingredient, and in what case?

Lord Nicholls in Stovin v Wise

94

Stovin v Wise

Proximity in Caparo, despite being under its own heading, was not a separate ingredient - just another way of testing fair just and reasonable

95

Hill v Chief Constable of West Yorkshire general

Sutcliffe, last victim

96

Hill v Chief Constable of West Yorkshire judgment

No prior relationship to satisfy proximity test under Caparo

97

Hickman on proximity test

'Underpinned by policy considerations'

98

Who argued the proximity test is 'underpinned by policy considerations'?

Hickman

99

How do L&O describe the fair just and reasonable test?

'General repository for a miscellaneous set of policy arguments, undefined in nature and unlimited in number'

100

Who called the fair just and reasonable test a 'General repository for a miscellaneous set of policy arguments, undefined in nature and unlimited in number'?

L&O

101

What does Beever argue about the fair just and reasonable test?

If courts keep making such policy choices, as L&O suggest, legislature should take control and replace common law with statute on negligence

102

Who suggested that If courts keep making such policy choices, as L&O suggest, legislature should take control and replace common law with statute on negligence?

Beever

103

XA v YA general

Violent father, FIRST INSTANCE

104

XA v YA judgment

No DoC as would have required Mum to break up family, likely to be abused herself and how can courts work out best interests of child 30/40 years ago

105

What is an example of the courts searching for extent of DoC from parent to child?

XA v YA

106

McFarlane v Tayside Health Board general

Vasectomy, child

107

McFarlane v Tayside Health Board judgment

HoL allowed claim for distress of pregnancy and childbirth, ut not for upbringing

108

What judge in what case shows explicitly how a judge's sense of morality shapes the law in negligence?

McFarlane v Tayside Health Board, Lord Steyn

109

Lord Steyn in McFarlane v Tayside Health Board

Considers distributive justice, and how ordinary people would not expect such a claim to be allowed given the amount of people who can't have children at all

110

What judge in McFarlane explored distributive justice?

McFarlane v Tayside Health Board

111

Parkinson v St James and Seacroft University Hospital

Could claim for additional costs of raising disabled child, but not general costs

112

What case showed courts will allow claim for additional costs of raising a disabled child, but still to McFarlane on general costs?

Parkinson v St James and Seacroft University Hospital

113

Cattanach v Melchior

Shows HC in Australia struggling on parents' claim for unintended children - split 4:3 in favour of costs for child

114

What case shows other courts struggle with parents' claim for unintended children?

Cattanach v Melchior, HC in Australia split 4:3

115

What was the consequence of Cattanach v Melchior in Australia?

Many states legislatively reversed the result

116

Mulcahy v MoD general

Infront of gun, hearing

117

Mulcahy v MoD judgment

No DoC as highly detrimental to battlefield operations

118

Infront of gun, hearing

Mulcahy v MoD

119

Smith v MoD general

Blown up by roadside bombs or friendly fire - equipped

120

Smith v MoD judgment

SC decided test needed to be decided in a further case as involved policy considerations inappropriate for court to adjudicate on

121

What did the minority think in Smith v MoD?

No DoC after application of Caparo test

122

Blown up by roadside bombs or friendly fire

Smith v MoD

123

What case shows the SC being extremely deferential to executive due to policy considerations required in application of Caparo test?

smith v MoD

124

What two cases explore application of fair just and reasonable test in soldiers injured in combat?

Smith v MoD; Mulcahy v MoD

125

What two cases explore application of fair just and reasonable test in parents' claim for unintended children?

McFarlane v Tayside Health Board; Parkinson v St James and Seacroft University

126

What two cases explore application of fair just and reasonable test in police duty to victims of crime?

Hill v Chief Constable of West Yorkshire; Osman v UK

127

Osman v UK general

Teacher obsessed with boy, reported, shot father

128

Hill v Chief Constable of West Yorkshire on fair just and reasonable test

No because duty would not improve standard of police, and may even lead to detrimentally defensive frame of mind

129

What case rejected application of fair just and reasonable test because may lead to detrimentally defensive frame of mind?

Hill v Chief Constable of West Yorkshire

130

Why did the court say no to FJR test in Osman?

Same general principles as in Hill

131

What happened in ECtHR in Osman?

Violation of Article 6 through use of strike out decision as immunity of police needed to be applied proportionally

132

How can Hill be circumvented under HRA?

Breach of section 6 - Article 2 requires police to take positive action if 'real and immediate risk'

133

What argument went to the ECtHR in Osman?

Strike out decision

134

Von Colle v Chief Constable of Hertfordshire judgment

No breach of Article 2

135

Von Colle v Chief Constable of Hertfordshire general

Murder of prosecution witness by defendant

136

Savage v South Essex Partnership

Positive obligation under Article 2 can extend to self-harm

137

Murder of prosecution witness by defendant

Von Colle v Chief Constable of Hertfordshire

138

Positive obligation under Article 2 can extend to self-harm

Savage v South Essex Partnership

139

Z v UK

Osman misunderstood DoC test; didn't need to be proportionate as not immunity, so could apply strike out

140

What case showed ECtHR admitting Osman misunderstood DoC test?

Z v UK

141

Smith v Sussex Police general

Homosexual ex, messages, injured after report

142

Smith v Sussex Police judgment

Majority in HoL said no DoC, applying Hill and Brooks

143

Lord Bingham in Smith v Sussex Police

Tried to create new 'liability principle', creating DoC when C gives D apparently credible evidence that 3rd party presents a specific and imminent threat to C

144

What principle was attempted to be created in Smith v Sussex Police, and by who?

Lord Bingham, liability principle

145

Nolan on liability principle of Bingham from Smith v Sussex Police

'Imminent' is too uncertain and overly fact-dependent test

146

Lord Brown in Smith v Sussex Police

Concern over distortion of police performance by finding DoC, causing neglect in non-DoC areas

147

What judge in Smith showed concern over distortion of police performance by finding DoC?

Lord Brown

148

burton on Smith v Sussex Police'

'licence for the police to continue to fail victims of crime generally and victims of domestic violence in particular'

149

Who said that Smith v Sussex Police gives a 'licence for the police to continue to fail victims of crime generally and victims of domestic violence in particular'?

Burton

150

L&O on Burton's criticism of Smith v Sussex

No blanket immunity and may still owe DoC if police have assumed a responsibility

151

Michael v Chief Constable of South Wales general

Violent ex-bf, phone with 60, dead in 15

152

Michael v Chief Constable of South Wales judgment

Hill principles still apply - SC emphasised that here there was a failure to act, where it is harder to prove there is a DoC

153

What case showed the SC emphasising a failure to act, and suggesting it is harder to prove a DoC in such circumstances?

Michael v Chief Constable of South Wales

154

Lord Kerr's dissent in Michael v Chief Constable of SW

Test is based on judicial intuition so should be more responsive to contemporary perceptions

155

Who argued in what case that FJR test is based on judicial intuition so should be more responsive to contemporary perceptions?

Michael v Chief Constable of SW, per Lord Kerr

156

Brooks v Commissioner of Police for the Metropolis general

Friend of Stephen Lawrence, mental illness

157

Brooks v Commissioner of Police for the Metropolis judgment

DoC not owed - anxiety over Osman decision despite Z v UK, but still reaffirming central holding in Hill

158

What case shows the HoL experiencing anxiety after Osman decision on proportionality?

Brooks v Commissioner of Police for the Metropolis

159

Through what section does the HRA have horizontal effect?

Section 6 - courts make decisions compatible with Convention

160

How is there vertical effect through HRA?

Imposes obligations directly on public authorities through section 6

161

LJ Arden on development of common law and Convention

Development only when 'appropriate for domestic law reasons'

162

Who said common law only develops in line with Convention when 'appropriate for domestic law reasons'?

LJ Arden

163

Smith v Chief Constable of Sussex on common law and ECHR

HoL believe two could exist in parallel, rather than extending former to remedy a breach of the convention

164

What two reasons were given in Smith v Chief Constable for common law and ECHR existing in parallel?

Osman test is more stringent than negligence, and the two serve different purposes

165

What judge in Smith v Chief Constable said common law and ECHR serve different purposes?

Lord Brown

166

Why does it matter that Osman test is more stringent than negligence, according to Smith v Chief Constable?

If CL were extended to remedy Convention, it would expand liability further for Convention rights than recognised by ECHR

167

What did Lord Brown in Smith v Chief Constable believe the purpose of HRA is?

Vindicate rights

168

What did Lord Brown in Smith v Chief Constable believe the purpose of common law tort is?

To compensate

169

What academic argues private law duties like a DoC can only be correlative to a right possessed by C?

Stevens

170

What is the rights-based approach to negligence?

private law duties like a DoC can only be correlative to a right possessed by C

171

what approach to negligence does Stevens advocate?

Rights-based approach

172

What judge in what case supported a change in emphasis in DoC from consideration of a duty to consideration of breach?

Lord Bingham in D v East Berkshire Community

173

What argument of Bingham's was rejected by the majority in D v East Berkshire Community?

Change in emphasis in DoC from consideration of duty to consideration of breach

174

Who believes Macmillan's first draft would have been given as the final speech had the date of delivery of the judgment not been pushed back?

Lord Alan Rodger

175

Who would Macmillan's first draft in Donoghue have appealed to and why?

Scottish academics who believe judges concentrate too much on English authority

176

Why does Lord Rodger believe Macmillan and Atkin both refer to the American case of MacPherson?

Academic influence - Boehlen's article, led to the article by Goodhart

177

What author does Lord Rodger believe wrote an article that introduced Macmillan and Atkin to the American case of Macpherson in Donoghue?

Boehlen

178

Who else does Lord Rodger believe Atkin convinced to change emphasis from Scottish to English law in Donoghue?

Lord Thankerton

179

What argument of Denning's does Lord Rodger reject?

Atkin persuaded them to reach the result - only persuaded them to apply the result to English law too

180

what does Denning argue about the judgments of Lord Thankerton and Macmillan in Donoghue?

Atkin persuaded them to reach the result they did, rather than just persuading them to change emphasis from Scottish to English law

181

Who called the three majority judges in Donoghue 'the celtic majority'

Lord Alan Rodger

182

How did Lord Alan Rodger describe the majority judges in Donoghue?

'the celtic majority'

183

What academic highlights convergence of negligence and human rights law is undesirable because they perform different functions?

Nolan

184

What two arguments for convergence does Nolan argue against ?

Functional equivalence argument and fundamental rights argument

185

What is the functional equivalence argument on convergence?

Human rights and negligence perform the same functions

186

What is the fundamental rights argument on convergence?

Human rights are more fundamental than tort law

187

What academic argues there is 'no need to introduce major changes into tort law' because it can exist in parallel with HRA?

Jones

188

What argument in Smith v Chief Constable of Sussex does Nolan reject?

Functional separation argument, saying Convention vindicates rights and tort compensates

189

How does Nolan argue against the functional equivalence argument, whilst still rejecting the functional separation argument in Smith?

He sees Convention as giving a right good against the state, and tort (private law) as giving a right good against all

190

Lord Bingham in R (Greenfield) v SoS for the HD

HRA is not a 'tort statute' and it has 'different and broader objects'

191

What judge in what case supported Nolan's argument against functional equivalence, and how?

Bingham in R (Greenfield) v SoS for the HD - HRA is not a 'tort statute' and has 'different and broader objects'

192

What two general points does Nolan give to argue against functional equivalence of Convention and negligence?

Different limitation periods and alien public law concepts like proportionality

193

What does Nolan argue about the fundamental rights argument of Convention?

Private law rights could be argued to be more fundamental as they are universal and have a longer history

194

Who thought private law rights could actually be argued to be more fundamental than private law because universal and longer history

Nolan

195

What fundamental basis of the law of negligence does Nolan believe convergence with Convention would undermine?

Distinction between acts and omissions

196

Gorringe v Calderdale

Public authority not liable in negligence for failing to confer a benefit unless private party would also be liable

197

What authority does Nolan believe would need to be overruled to allow convergence with Convention in negligence?

Gorringe v Calderdale, to remove distinction between acts and omissions

198

What does Nolan argue about the difference in the fault test between negligence and Convention?

Positive obligation under Article 2 and 3 is similar to negligence, but maybe more difficult under Convention (Lord Phillips in Savage)

199

What judge in what case suggested standard of reasonableness under Osman (Convention) is 'much more stringent' than under negligence?

Lord Phillips in Savage

200

What three core distinctions does Nolan point to in Article 8 between Convention and negligence?

Puts burden on state to justify intervention, 'necessity' does not mean reasonable but pressing social need and significance attached to procedural failure where they may not be in tort

201

Handyside v UK

Article 8 'necessity' means pressing social need, not reasonable

202

Lord Brown in Van Colle on causation under the Convention

'Looser approach'

203

What judge in what case saw causation under the Convention to be a 'looser approach' than in negligence?

Lord Brown in Van Colle

204

How does Nolan describe the difference in causation test under Convention and tort?

Negligence is a 'but for' test, but Convention needs reasonable measures 'could have had a real prospect of altering the outcome'

205

What does Nolan believe about the difference in the scope of protection under Convention and negligence?

'Victim' under Convention is broad and flexible, but not always mirrored in negligence

206

What case does Nolan point to in order to show that the scope of protection under Convention can be a lot broader than in negligence?

In Savage the daughter would have lacked standing in negligence as not considered a 'victim'

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