Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

FLK 1 > Tort - Negligence > Flashcards

Tort - Negligence Flashcards

(97 cards)

Start Studying
1
Q

Donoghue v Stevenson

A

‘the neighbour test’
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is negligence?

A

The breach of a legal duty to take care by the defendant resulting in loss or damage to the claimant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Caparo Industries

A

Set out 3 stage approach for establishing a duty of care where there is no precedent

  1. Foreseeability of harm (objective test - would it be reasonably foreseeable that the defendant’s lack of care would cause the claimant harm?)
  2. relationship of sufficient proximity
  3. is it fair, just and reasonable to impose a duty?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

When does a defendant owe a duty of care to a third party for the actions of someone else?

A

When they have assumed responsibility or control (e.g. Home Office v Dorset Yacht).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the key policy considerations in determining fair, just, and reasonable?

A

Floodgates, insurance, crushing liability, deterrence, maintaining high standards, defensive practices.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is the approach in novel situations when there’s no precedent?

A

Use Caparo’s three-stage test incrementally and by analogy with established authorities.

Foreseeability of damage, a relationship of proximity between the parties, and that it be fair, just and reasonable to impose a duty.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

General rule regarding omissions?

A

No liability is imposed on a mere failure to act

Exceptions:
a) where there is a statutory duty (e..g OLA)
b) contractual duty
c) where defendant has sufficient control over the claimant
d) where D assumes responsbility for the claimant
e) where defendant creates the risk

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the position in relation to ambulance services and duty of care?

A

The ambulance service owe a duty of care to respond ot a 999 call within a reasonable time.

Duty may not have been breached where they properly exercise discretion to deal with a more pressing emergency before attending to the claimant or where it made a choice about the allocation of resources

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is the position in relation to fire brigades and duty of care?

A

The fire bridgade owes no duty of care other than attend a fire.
If they do attend –> owe a duty not ot make the situation worse thorugh a positive act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is the position in relation to the police and duty of care?

A

Police owe no duty of care to respond to emergency calls.
But can owe a duty in other circumstances e.g. Reeves

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Reeves: Why did the police owe a duty to take action to protect a prisoner from suicide?

A

The police had a high degree of control over the defendant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is the general rule re. third parties causing harm to another?

A

No duty is owed for harm caused by third parties.

Except where:
a) there is sufficient proximity between D and C; and or
b) there is sufficient proximity between D and third party; and or
c) D created the danger; and/or
d) the risk was on D’s premises

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

When might a defendant owe a duty of care for harm caused by a third party?

A

When they assumed responsibility, created the danger, or had control over the risk.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Stansbie v Troman.

A

A duty of care to take positive action can arise from a contractual relationship

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Why was there no duty in Smith v Littlewoods?

A

The defendant didn’t know the danger nor was the danger foreseeable - no history of break-ins

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Why was a duty imposed in Home Office v Dorset Yacht?

A

The defendant had supervisory control over the borstal boys who caused damage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Why did the House of Lords refuse to impose a duty of care in Hill v CC of West Yorkshire?

A

Insufficient proximity between the victim who was an unidentifiable member of a massive group of potential victims and the police

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

The general rule is that there is no duty owed for a failure to prevent a third-party causing harm. However, there are a number of exceptions to this rule which are:

A

There is sufficient proximity between the defendant and claimant; and/or
There is sufficient proximity between the defendant and third party; and/or
The defendant created the danger; and/or
The risk was on the defendant’s premises.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is the starting point when considering whether public bodies owe a duty of care?

A

…to apply the same principles that are applicable to private individuals.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

How is liability assessed for public bodies in omissions cases?

A

The same as for individuals: no duty for omissions unless an exception applies.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is the ‘floodgates’ policy concern?

A

Concern that imposing a duty of care would lead to so many claims that the public body might be financially or practically overwhelmed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

How does parliamentary sovereignty affect public body duties?

A

Acts authorized by Parliament cannot be the basis of a tortious duty.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

How do operational vs policy matters affect liability?

A

Policy decisions (e.g. resource allocation) may not attract liability, but operational errors might (e.g. failure in day-to-day actions).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Why is it often problematic to determine whether a public body owes a duty of care?

A

The liability of a public authority is in principle the same as that of a private person but may be restricted by statutory powers or duties.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
What are the two stages in determining whether there has been a breach of duty?
1. establish the standard of care - question of law 2. establish breach of duty - question of fact
24
General rule re. standard of care
D must behave as a reasonable person would in all the circumstances (Blyth) Objective test - reasonable man presumed free from over-apprehension and over-confidence Act, not the actor (e.g. driving, medicine etc.)
25
What is the standard of care for professionals?
A professional must meet the standard of a reasonably competent professional in their field (e.g., Bolam).
26
Does inexperience lower the standard of care?
No allowance made for a defendant being junior/inexperienced in a particular field
27
What standard applies to children?
The standard is that of a reasonable child of the same age (e.g., Mullin v Richards).
28
How does sudden illness or disability affect the standard of care?
The standard may be adjusted if the defendant was unaware of their impaired ability (e.g., Mansfield v Weetabix).
29
Which seminal case established that the standard of care expected of someone working in a professional capacity is that "of the ordinary reasonable man exercising and professing to have that special skill".
Bolam v Friern Hospital Management Committee
30
The most important thing to learn from Nettleship v Weston is that:
A person will be required to meet the standard appropriate for the act they are carrying out.
31
What factors are considered when determining breach?
Likelihood of harm Magnitude of harm Practicality of precautions Benefit of the defendant’s conduct Common practice State of the art Special rules for sport
32
What is the principle from Latimer v AEC?
Precautions must be reasonable; no duty to eliminate all risks if precautions are impractical or disproportionate.
33
What is the relevance of ‘state of the art’?
A defendant’s conduct is judged by knowledge and standards at the time; unforeseeable risks cannot be guarded against.
34
Does a high risk of serious injury affect the duty of care?
Yes, greater care is expected where the magnitude of harm is high.
35
Can a beneficial activity reduce liability?
Yes, if the defendant’s actions have a clear social benefit (e.g., emergency services) it may justify taking a risk.
36
How is breach proved in negligence?
On the balance of probabilities; res ipsa loquitur or relevant criminal conviction may assist.
37
When determining if there has been a breach of duty, you must first ascertain the standard of care, and secondly ascertain if the defendant has fallen below that standard. Which of the following statements is correct in relation to those issues?
Ascertaining the standard of care is a question of law, ascertaining whether the defendant has fallen below it is a question of fact.
38
What principle was established in Paris v Stepney Borough Council?
The seriousness of potential injury (magnitude of harm) can increase the required standard of care.
39
How do courts balance cost/practicality of precautions?
They consider if it’s reasonable for the defendant to take steps; if precautions are impractical or disproportionate, no breach.
40
What is the principle from Watt v Hertfordshire CC?
Where life or limb is at risk (e.g., emergency services), risk-taking may be justified.
41
Does compliance with common practice always prevent breach?
No. Courts can find common practice negligent if it’s unsafe (e.g., Re Herald of Free Enterprise).
42
What principle applies to sport and breach of duty?
Higher risk tolerance applies; breach requires reckless disregard or serious risk (e.g., Wooldridge v Sumner).
43
Who is the burden on for proof of breach?
On the claimant to prove that D breached the duty of care
44
How can Section 11 of the Civil Evidence Act 1968 help claimants?
A criminal conviction (e.g., careless driving) can be used as evidence of breach. For example, if the defendant was convicted of careless driving, this can be used as evidence of breach in a negligence claim for damages.
45
What is res ipsa loquitur?
“The facts speak for themselves” – used when the claimant can’t point to direct evidence but the accident wouldn’t happen without negligence. 1️⃣ The thing causing the damage was under the defendant’s control. 2️⃣ The accident wouldn’t happen without negligence. 3️⃣ The cause is unknown to the claimant. The burden shifts to the defendant to prove they were not negligent.
46
What is the Bolam test?
A professional is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that area.
47
Does Bolam apply to all professions?
Yes, but it originated in medical contexts and is applied to other professional standards.
48
When might a professional still be found negligent despite following common practice?
If the practice does not withstand logical analysis (e.g., Bolitho v City & Hackney HA).
49
What is the current principle for a doctor’s duty to advise patients of risks and alternatives?
Doctors must inform patients of material risks (Montgomery), focusing on what a reasonable person in the patient’s position would consider significant. For advice on reasonable alternative/variant treatments, the standard is judged by a responsible body of medical opinion (Bolam, as clarified by McCulloch).
50
What is the key learning point from Montgomery v Lanarkshire Health Board?
Medical professionals are generally obliged to tell patients about material risks involved in any recommended treatment and of any reasonable alternative treatments.
51
What are the two points that must be considered to establish causation?
a) factual causation b) legal causation
52
What is factual causation?
53
What is the 'but for' test?
On the balance of probabilities, but for the defendant's breach of duty, would the claimant have suffered their loss at that time and in that way? If no: factual causation is satisfied if yes: factual causation is not satisfied --> D is not liable
54
Clinical negligence - failure to advise on risk
'But for' test can be satisfied if claimant can prove that they would not have had the treatment or would have deferred the treatment had they been told of the risk
55
What is the material contribution test?
If the defendant’s breach contributed more than negligibly to the harm where multiple causes operated together, causation is established.
56
What is the standard of proof for the ‘but for’ test?
Balance of probabilities – it must be more than 50% likely that the breach caused the harm.
57
What case illustrates the ‘but for’ test where causation failed because the breach made no difference?
Barnett v Chelsea and Kensington Hospital – patient died of arsenic poisoning which was fatal regardless of hospital’s failure to treat.
58
When does the ‘but for’ test fail in multiple cause cases?
When independent causes (e.g., Wilsher’s five possible causes) make it impossible to prove the breach caused the harm.
59
How do courts address multiple cumulative causes?
By applying the material contribution test – if the breach made a more than negligible contribution to the harm, causation is established.
60
Key case for material contribution in cumulative causes?
Bonnington Castings v Wardlaw – cumulative dust exposure (tortious and non-tortious) led to pneumoconiosis.
61
What if science cannot show ‘but for’ causation but the breach increased the risk?
The material increase in risk test applies – causation is established if the breach materially increased the risk of harm.
62
Key case for material increase in risk?
McGhee v National Coal Board – exposure to brick dust increased risk of dermatitis.
63
When is the material increase in risk test used?
In industrial disease/single-agent cases where science can’t pinpoint the exact cause (e.g., mesothelioma).
64
Key case applying material increase in risk to multiple employers?
Fairchild v Glenhaven – asbestos exposure from multiple employers; causation established against each increasing risk.
65
Why doesn’t Wilsher apply material increase in risk?
Because there were multiple different possible causes, not one cumulative or single-agent cause like McGhee.
66
What is loss of chance, and when is it accepted?
It’s claiming damages for a reduced chance of avoiding harm. Not accepted in personal injury (Hotson), but may apply in pure economic loss (Allied Maples).
67
Key case rejecting loss of chance in personal injury?
Hotson v East Berkshire HA – child fell from tree, 75% chance of paralysis regardless of negligence.
68
When does the material contribution test apply in clinical negligence?
When cumulative causes (e.g., Bailey – vomiting caused by weakness and negligent care) contribute to the harm.
69
When does the ‘but for’ test relax for clinical negligence about advice on risks?
Chester v Afshar – if a patient can prove that proper warning would have prevented or delayed treatment, causation is established.
70
A patient undergoes an operation on their face that carries a 5% risk of causing permanent scarring. The risk materialises. The surgeon did not inform the patient of the risk prior to the operation. Which of the following statements is most accurate in relation to factual causation?
Factual causation is satisfied if the patient can show that they would not have had the operation or would have deferred the operation to a later date had they been told of the risk.
71
What is the material increase in risk test confined to?
Single agent industrial disease cases
72
What to remember if an industrial disease case comes up?
Material increase in riskt test
73
When might the courts apply the material increase in risk test and what the claimant must prove in order to satisfy the test?
The court might apply the material increase in risk test to single agent industrial disease cases where there is more than one potential cause of the claimant’s loss. The claimant must prove that the breach made a greater than de minimus contribution to the risk.
74
What is apportionment?
Where there are multiple tortious factors which have caused the claimant’s loss, the courts will divide liability between the various defendants reflecting the respective fault of each defendant.
75
What was a key difference between Baker and Jobling that might help to explain the contrasting decisions?
In Baker there were two tortious events and in Jobling there was a tort followed by a natural event.
76
What does ‘joint and several liability’ mean under the Compensation Act 2006?
Any or all of the negligent employers who exposed the claimant (in mesothelioma cases) are fully liable to the claimant, but they can recover contributions from each other.
77
When is a second defendant NOT liable in multiple sufficient causes?
When the second act caused no additional damage (Performance Cars v Abraham).
78
If a second event is tortious, who is liable for the initial loss?
The first tortfeasor remains liable for the original damage past the second event (Baker v Willoughby).
79
If the second event is natural, what happens to the first defendant’s liability?
It ceases at the point of the natural event (Jobling v Associated Dairies).
80
What does legal causation (novus actus interveniens) assess?
Whether any subsequent events after the defendant’s breach break the chain of causation.
81
What is a novus actus interveniens?
An intervening act that breaks the chain of causation between the breach and the loss.
82
What are the three types of novus actus interveniens?
Acts of God or natural events Acts of third parties Acts of the claimant
83
When do acts of God break the chain of causation?
When they are exceptional and unforeseeable (e.g., storm damage in Carslogie).
84
When do acts of third parties break the chain of causation?
When they are highly unforeseeable
85
When does medical treatment break the chain of causation?
Only if it is so gross and egregious as to be unforeseeable (Wright v Cambridge).
86
When do acts of the claimant break the chain of causation?
When the claimant acts highly unreasonably (e.g., descending stairs without handrail in McKew).
87
What is the key test for remoteness?
The type of damage must have been reasonably foreseeable at the time of the breach (Wagon Mound No 1).
88
What is the 'thin skull' rule?
The defendant must take their victim as they find them, regardless of any pre-existing illness.
89
Does the precise way damage occurs need to be foreseeable?
No. If the type of damage was foreseeable, the exact way it occurred doesn’t have to be (Hughes v Lord Advocate).
90
Does the full extent of the damage need to be foreseeable?
No. If the type of damage was foreseeable, the defendant is liable for the full extent, even if aggravated (Vacwell; Smith v Leech Brain).
91
How is the type of damage approached?
The type of damage can be seen broadly or narrowly. Cases like Bradford v Robinson Rentals (broad) vs Tremain v Pike (narrow).
92
In Page v Smith, what type of damage was foreseeable?
Personal injury, physical or psychiatric – the type was broadly defined.
93
What if damage suffered was unforeseeable but of a type that was foreseeable?
The claimant can still recover if the type of damage was foreseeable, even if the specifics were not (broad approach).
94
How do courts reconcile Bradford and Tremain?
Policy: The likelihood of harm and nature of precautions needed influenced decisions; Bradford took a broad view, Tremain took a narrow one.
95

FLK 1 (18 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions