Tort: Negligence - Duty and Breach Flashcards
(105 cards)
1
Q
What is the main principle of duty of care established in Donoghue v Stevenson?
A
A manufacturer owes a duty to the ultimate consumer
This case established the neighbour principle, which states that one must take reasonable care to avoid acts or omissions that could foreseeably injure others.
2
Q
What does the term ‘neighbour principle’ refer to?
A
A test for duty of care based on foreseeability and proximity
Developed by Lord Atkin in Donoghue v Stevenson, this principle defines ‘neighbour’ as those closely and directly affected by one’s actions.
3
Q
What are the three stages of the Caparo test for establishing a duty of care?
A
- Foreseeability of harm
- Relationship of sufficient proximity
- Fair, just and reasonable to impose a duty
4
Q
True or False: The Caparo test is a magic formula for establishing a duty of care.
A
False
The Caparo case suggests a cautious and incremental approach rather than a strict formula.
5
Q
What is the significance of foreseeability in the context of duty of care?
A
It must be reasonably foreseeable that the defendant’s lack of care would cause the claimant harm.
6
Q
What does ‘proximity’ refer to in the context of duty of care?
A
The closeness of the relationship between the claimant and defendant.
7
Q
What are some policy considerations affecting the recognition of duty of care?
A
- Floodgates
- Insurance
- Crushing liability
- Deterrence
- Maintenance of high standards
- Defensive practices
8
Q
What is meant by ‘floodgates’ in the context of duty of care?
A
The concern that allowing one claim could lead to an overwhelming number of similar claims.
9
Q
What is the general rule regarding liability for omissions?
A
The law only imposes liability on those who cause injury or damage; no duty is imposed on a mere failure to act.
10
Q
Name one exception to the general rule of liability for omissions.
A
- Where there is a statutory duty
- Where there is a contractual duty
- Where the defendant has sufficient control over the claimant
- Where the defendant assumes responsibility
11
Q
What was the outcome of Robinson v Chief Constable of West Yorkshire Police regarding duty of care?
A
The police owe a duty of care to the public to protect them from reasonably foreseeable physical injury.
12
Q
Fill in the blank: In cases of omissions, a duty of care may be imposed where there is a _______.
A
[statutory duty]
13
Q
What case established that a driver owes a duty of care to other road users?
A
Nettleship v Weston [1971] 2 QB 691
14
Q
What does the term ‘analogous’ mean in the context of duty of care?
A
Drawing comparisons with established authorities to determine if a duty of care should be recognized.
15
Q
What is the significance of the relationship between the claimant and defendant in establishing duty of care?
A
It helps determine proximity, which is a key factor in recognizing a duty of care.
16
Q
How should courts approach novel cases in determining duty of care?
A
By developing incrementally and by analogy with established authority.
17
Q
In Watson v BBBC, what was the court’s finding regarding the duty of care?
A
The injury was foreseeable; the defendant had assumed responsibility for medical care.
18
Q
What is the general rule regarding a duty of care for omissions?
A
No duty of care is owed for a failure to act.
19
Q
List the five exceptions to the general rule of no duty for omissions.
A
- Where there is a statutory duty
- Where there is a contractual duty
- Where the defendant has sufficient control over the claimant
- Where the defendant assumes responsibility for the claimant
- Where the defendant creates the risk
20
Q
What is the first exception to the general rule regarding omissions?
A
A positive duty is imposed on the defendant by statute.
21
Q
Give an example of a statutory duty that creates a duty of care.
A
The Occupiers’ Liability Act 1957 imposes a duty of care on occupiers to ensure their premises are reasonably safe for visitors.
22
Q
What is the second exception to the general rule regarding omissions?
A
A person fails to perform their contractual obligations to the claimant.
23
Q
What case illustrates the second exception related to contractual duties?
A
Stansbie v Troman.
24
Q
What is the third exception to the general rule regarding omissions?
A
The defendant has a high degree of control over the claimant.
25
What case exemplifies the exception of high control over the claimant?
Reeves v Commissioner of Police for the Metropolis.
26
What is the fourth exception to the general rule regarding omissions?
The defendant assumes responsibility for the claimant’s welfare.
27
What case demonstrates the assumption of responsibility for welfare?
Barrett v Ministry of Defence.
28
What is the fifth exception to the general rule regarding omissions?
The defendant creates the risk through an omission.
29
Provide an example case where the defendant created the risk through an omission.
Goldman v Hargrave.
30
What duty does the ambulance service owe when responding to a 999 call?
They owe a duty of care to respond within a reasonable time.
31
True or False: The fire brigade has a duty of care to attend a fire.
False.
32
What duty do police owe in relation to emergency calls?
Police owe no duty of care to respond to emergency calls.
33
What must be applied when determining if a duty of care is owed?
The Caparo three stage test of foreseeability, proximity, and fair, just, and reasonable.
34
What is the general rule regarding liability for acts of third parties?
No duty is imposed on a failure to prevent a third party from causing harm.
35
List the exceptions to the general rule of liability for acts of third parties.
* Sufficient proximity between the defendant and claimant
* Sufficient proximity between the defendant and third party
* Defendant created the danger
* Risk was on the defendant’s premises
36
What case illustrates sufficient proximity between the defendant and claimant?
Home Office v Dorset Yacht.
37
What does sufficient proximity require between the defendant and third party?
The defendant has a responsibility to control/supervise the third party.
38
What is a key consideration in determining duty of care in cases of omissions?
The relationship between the claimant and the defendant (proximity).
39
What must the defendant do to establish a duty of care in cases involving identifiable victims?
The defendant must assume responsibility for the claimant's safety.
40
What case shows the failure of establishing a duty of care due to lack of proximity?
Hill v Chief Constable of West Yorkshire.
41
What is the general rule regarding duty of care in relation to third-party harm?
No duty is imposed on a failure to prevent a third-party cause harm to another
## Footnote
This general rule applies unless specific exceptions are met.
42
What is the first exception to the general rule of duty of care?
Sufficient proximity (a special relationship) between the defendant and third party
## Footnote
This is established through case law, such as Home Office v Dorset Yacht.
43
In which case was the defendant held liable due to the supervision of third-party borstal boys?
Home Office v Dorset Yacht
## Footnote
The supervisory relationship created a duty of care.
44
What was the outcome of Hill v Chief Constable of West Yorkshire regarding proximity?
No proximity was established between the police and the third party
## Footnote
The third party was not under police care at the time of the killing.
45
What did the Court of Appeal decide in Palmer v Tees Health Authority regarding proximity?
There was a lack of proximity between the authority and the third party
## Footnote
The patient was not under the authority's care when the harm occurred.
46
What is the second exception to the general rule of duty of care?
The defendant created the danger
## Footnote
This is exemplified in Stansbie v Troman.
47
In Stansbie v Troman, what action led to the defendant's liability?
Failing to secure the building, allowing burglars to enter
## Footnote
This created a danger for the property owner.
48
What is the third exception to the general rule of duty of care?
Dangers on the defendant’s premises
## Footnote
The defendant may owe a duty if they knew or ought to know of a danger created by a third party.
49
What was the ruling in Smith v Littlewoods regarding known dangers on premises?
Littlewoods owed no duty of care as they were unaware of the danger
## Footnote
There was no history of break-ins that would have made the danger foreseeable.
50
What should be considered when determining if a duty of care is owed in novel cases?
Foreseeability, proximity, and what is fair, just, and reasonable
## Footnote
The Caparo three-stage test is used for this process.
51
What complicates the determination of duty of care for public bodies?
Statutory powers or duties and policy considerations
## Footnote
These factors can influence the court's findings on duty.
52
In CN and GN v Poole Borough Council, what was the court's ruling regarding the council's duty?
No duty was owed despite the council having the power to take the children into care
## Footnote
The court found no exceptions to the general rule applied.
53
What policy consideration might deter courts from imposing a duty of care on public bodies?
The taxpayer ultimately pays for damages
## Footnote
This may lead to reluctance in imposing duties that could restrict public services.
54
What distinction is made regarding operational versus policy matters for public bodies?
Public bodies can be liable for operational matters but not for policy decisions
## Footnote
This was highlighted in Rigby v Chief Constable of Northamptonshire.
55
What case established that a duty of care was owed by a local authority's psychologist?
Phelps v Hillingdon London Borough
## Footnote
The psychologist misdiagnosed the claimant's dyslexia, leading to a duty due to assumed responsibility.
56
What was the outcome of Jebson v Ministry of Defence regarding duty of care?
The camp commander owed a duty of care to the claimant
## Footnote
The commander assumed responsibility for the soldier's safety during a return trip.
57
Fill in the blank: The courts are concerned about the 'floodgates' opening for claims against the police if they could be sued in negligence for failing to __________.
apprehend a criminal
## Footnote
This concern relates to resource allocation and efficiency.
58
What is the main purpose of establishing a breach of duty in negligence claims?
To determine if the defendant has fallen below the standard of care expected in relation to the claimant's loss or damage.
59
What are the two stages in determining breach of duty?
* Establish the standard of care expected of the defendant (a question of law)
* Examine facts and circumstances to see if the defendant has breached that standard (a question of fact)
60
What is the general rule for the standard of care expected of a defendant?
The defendant must behave as a reasonable person would in all the circumstances.
61
What case provided the classic description of the standard of care?
Blyth v Birmingham Waterworks (1856) 11 Exch 781
62
What is the objective test of the reasonable person standard?
It assesses what a reasonable person would have done in the same circumstances, eliminating personal characteristics of the defendant.
63
In which case was it stated that the reasonable man is presumed to be free from over-apprehension and over-confidence?
Glasgow Corporation v Muir [1943] AC 448
64
What principle is illustrated in the case of Nettleship v Weston regarding the standard of care?
The standard is based on the act, not the actor; a learner driver is judged by the standard of an ordinarily competent driver.
65
What standard applies to professionals in terms of breach of duty?
The standard is based on what a reasonable professional in that field would have done.
66
What is the significance of the case Bolam v Friern Hospital Management Committee?
It established that a professional must meet the standard of ordinary skill of a competent professional in their field.
67
How is the standard of care adjusted for children?
It is based on the standard of a reasonable child of the defendant’s age.
68
What was the outcome in Mullin v Richards regarding the standard of care for children?
The court held that the defendant did not fall below the standard of a reasonably competent 15-year-old.
69
In Roberts v Ramsbottom, what was the key factor in determining the defendant's liability?
The defendant was judged against the standard of a reasonable competent driver despite being unaware of his impairment.
70
What does the case Mansfield v Weetabix Ltd illustrate about liability and awareness of impairment?
A driver unaware of his impairment was not held liable as he was judged against a reasonable competent driver unaware of any condition.
71
What factors do courts consider when establishing breach of duty?
* Likelihood of harm
* Magnitude of harm
* Practicality of precautions
* Benefit of defendant's conduct
* Common practice
* 'State of the art' defence
* Sport
72
What does the likelihood of harm factor imply in determining breach of duty?
The more likely harm is to occur, the more likely there will be a breach.
73
What was the ruling in Bolton v Stone regarding the breach of duty?
There was no breach as the likelihood of a cricket ball injuring someone outside the ground was deemed very small.
74
In Paris v Stepney Borough Council, why was the defendant found liable?
The defendant failed to provide protective goggles to a worker with only one good eye, leading to significant injury.
75
What does the practicality of precautions factor involve?
It assesses how easily risks can be avoided and balances the cost of precautions against the severity of the risk.
76
What was the outcome in Latimer v AEC Ltd regarding practicality of precautions?
The defendant was not liable as the precautions taken were reasonable given the circumstances.
77
How does the benefit of the defendant's conduct factor into breach of duty?
The courts consider the societal value of the defendant's actions when assessing breach; risks may be justified in emergencies.
78
What was the ruling in Watt v Hertfordshire County Council regarding emergency services?
The court found no breach as the risk taken was justified by the need to save a life.
79
What was held regarding the firemen's employer's breach of duty in the context of an emergency?
There was no breach as the risk of injury was small and saving life justified taking the risk.
## Footnote
Abnormal risks may be justified when life is at stake, but this does not provide a blanket exemption for emergency services.
80
What does section 1 of the Compensation Act 2006 allow courts to consider?
The deterrent effect of potential liability on socially desirable activities.
## Footnote
Courts may consider if a requirement to take steps might prevent or discourage desirable activities.
81
What must a court take into account under the Social Action, Responsibility and Heroism Act 2015?
Whether the person acted for the benefit of society, demonstrated a responsible approach, or acted heroically in an emergency.
## Footnote
This act aims to protect individuals acting in the public interest from being found negligent.
82
What is the significance of common practice in a negligence claim?
If a defendant shows they acted according to common practice, it may help their case, but the court can still rule the practice as negligent.
## Footnote
Example: Re Herald of Free Enterprise case where common practice was deemed negligent.
83
What is the 'state of the art' defense?
It assesses a defendant's actions against the knowledge and accepted practice at the time of the alleged breach.
## Footnote
Unforeseeable risks that could not have been anticipated do not constitute negligence.
84
What did the court decide in Wooldridge v Sumner regarding sports participation?
Nothing short of reckless disregard for safety constitutes a breach.
## Footnote
This case involved a spectator being injured, highlighting the context of risk in sports.
85
What balancing exercise must be done to determine breach?
All relevant factors such as likelihood of harm, magnitude of harm, practicality of precautions, and benefits of defendant's conduct must be balanced.
## Footnote
Example: The Wagon Mound (No 2) case illustrates this balancing act.
86
Who bears the burden of proof in a negligence claim?
The claimant must prove that the defendant breached the duty of care on the balance of probabilities.
## Footnote
This can be a challenging task for the claimant.
87
What does section 11 of the Civil Evidence Act 1968 provide for claimants?
Claimants may rely on a conviction from a criminal prosecution as evidence of careless conduct.
## Footnote
This can assist in proving negligence.
88
What is 'res ipsa loquitur'?
A legal maxim meaning 'the facts speak for themselves', used when the only explanation for injuries is negligence by the defendant.
## Footnote
Conditions for its application include control of the damaging object by the defendant and unknown cause of the accident.
89
What are the three conditions for res ipsa loquitur to apply?
* The damaging object was under the control of the defendant
* The accident would not normally happen without negligence
* The cause is unknown to the claimant.
90
What is the Bolam Test?
A standard used to determine if a professional has fallen below the standard of care by acting in accordance with accepted practice by a responsible body of professionals.
## Footnote
This applies to various professions, not just medical.
91
What does the case of De Freitas v O’Brien and Connolly establish regarding responsible bodies of opinion?
A responsible body does not need to represent the majority opinion, just an acceptable one.
## Footnote
In this case, a small group of qualified surgeons supported the defendant's actions.
92
What did the court state in Bolitho v City and Hackney Health Authority regarding common professional practice?
Common practice must also be reasonable or responsible, not just commonplace.
## Footnote
The court needs to ensure that the opinion has a logical basis.
93
What is the state of the art defense in a professional context?
Assessing a defendant's actions against the knowledge in the profession at the time of the breach.
## Footnote
Knowledge may change quickly, and professionals must keep up with developments.
94
What is the implication of Montgomery v Lanarkshire Health Board regarding failure to warn of risks?
Medical professionals must ensure patients are aware of material risks involved in treatments.
## Footnote
The Bolam Test does not apply in this context; the focus is on the patient’s perspective.
95
What is the primary focus of the Bolam test?
To determine if professionals acted in accordance with accepted practices
## Footnote
The Bolam test establishes that professionals are not guilty of negligence if they followed a practice accepted by a responsible body of professionals skilled in that area.
96
In the context of advising patients on risks, what obligation do medical professionals have according to Montgomery?
To ensure that the patient is aware of any material risks involved in recommended treatment and any reasonable alternative or variant treatments
## Footnote
This obligation was confirmed in the case of McCulloch and others v Forth Valley Health Board.
97
True or False: The Bolam Test applies when considering whether a medical professional has failed to advise on a material risk.
False
## Footnote
The Bolam Test does not apply to the duty of advising on material risks according to the court's ruling.
98
What test do courts use to determine if a risk is material?
Whether a reasonable person in the patient’s position would attach significance to the risk or if the doctor should reasonably be aware of the patient's perspective
## Footnote
This ensures that patients can give informed consent.
99
Fill in the blank: The Bolam Test now applies to the obligation to take reasonable care to advise the patient of any _______.
reasonable alternative or variant treatments
## Footnote
This was confirmed in the McCulloch case.
100
What can the court conclude if a professional's accepted practice does not withstand logical analysis?
The professional can be found negligent
## Footnote
This underscores the court's role in evaluating professional standards.
101
How does the court determine how up to date a defendant should be in their professional knowledge?
By considering how quickly knowledge can change in professional areas
## Footnote
This recognizes the evolving nature of medical and professional standards.
102
What is the key difference in the application of the Bolam Test regarding advising on risks versus advising on alternatives?
The Bolam Test does not apply to risks but does apply to alternatives
## Footnote
This distinction was clarified by the Supreme Court in the McCulloch case.
103
What is the primary concern regarding the doctor-patient relationship in the context of advising on risks?
It should be viewed primarily from the patient’s point of view
## Footnote
This perspective shapes the legal obligations of medical professionals.
104
What case established the principle that the Bolam Test is not applicable for advising on material risks?
Montgomery v Lanarkshire Health Board
## Footnote
This case is pivotal in understanding the modern obligations of medical professionals.
105
According to the Bolam Test, when is a professional not guilty of negligence?
If they acted in accordance with a practice accepted as proper by a responsible body of professionals
## Footnote
This principle highlights the reliance on professional consensus in legal assessments.
