tort of negligence Flashcards
(37 cards)
what are the three elements that you must prove to be successful in a claim
- d owes c a duty of care
- d has breached that duty
- c has suffered damage resulting from the breach.
which case does the neighbour principle come from and what is the ratio
Donoghue v Stevenson
what did lord Atkin say about the neighbour test
you must take reasonable care to avoid acts or omissions that you can reasonably foresee might injure your neighbour.
what is the neighbour test
any person(s) who is/ are clearly and directly affected by my acts or omissions
what was the case called that turned the 2 stage neighbour test into 3 stages and what was the ratio
Caparo Industries plc v Dickman
H: the HoL laid down a formula for determining whether there is a duty of care in negligence cases. It was stated that there were now three questions to be asked in deciding whether a duty of care was owed by the defendant to the claimant.
what are the 3 stages of the Caparo test
- was it reasonably foreseeable that a person in C’s position would be injured?
- was there sufficient proximity between the claimant and the defendant in relationship or time and space?
- Is it fair, just and reasonable to impose a duty of care? (policy)
explain the case that you use for the first stage of the Caparo test
Kent v Griffiths
F: C was having a severe asthma attack and the ambulance took 40 mins to arrive and couldn’t provide a satisfactory reason for the delay. the claimant has a respiratory arrest as a result
H: it was reasonably foreseeable that if the ambulance was late this would cause further harm to the victim
what two cases are used for the second stage of the caparo test
Osman v Ferguson
Bourhill v Young
explain the case of Osman v Ferguson
F: the attacker had a fixation about a schoolboy and the police knew that there was a real risk of an attack. the boy’s father was then murdered by the attacker and the boy seriously injured.
H: there was proximity between the police and the victim as the police knew he was a possible victim.
explain the case of Bourhill v Young
F: C was on a tram. D drove his motorbike past the tram at excessive speed and collided with a car 50 feet away from where C was standing. C heard the collision but didn’t see it. a short time later, C walked past where the incident occurred. the body had been removed but there was alot of blood on the road still. the C went into shock and premature labour her baby was stillborn.
H: no proximity between Mrs B and motorcyclists as she was not involved in the accident.
what two cases are used for the third stage of the Caparo test
Hill v CC of West Yorkshire
Robinson
explain the case of Hill v CC West Yorkshire
F: Mother of the final victim made a claim because the police had let the accused go and he killed her daughter
H: it wasn’t fair, just or reasonable to impose a duty on the grounds of public policy. this would lead to defensive policing and might open the ‘flood gates’ to more claimants.
explain the case of Robinson
F: when arresting a suspected drug dealer police were struggling and knocked over an old lady who suffered injuries
H: the police don’t owe DoC, to protect the public from harm by failing to prevent crime. the police may therefore be under a duty of care to protect an individual from danger of injury which they have themselves created.
after the case of Blyth v Birmingham Waterworks Co what is the definition of negligence
“negligence is the omission to do something which a reasonable man, guided upon these considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do”
what are the 4 degrees of skill in breach
- adult professionals
- adults
- adult learners
- children
explain the case of Bolam v Friern Hospital Management Committee in relation to adult professionals with the test
F: electric treatment for depression the patient not given relaxant drugs and fell off the table breaking their leg.
T: what would the ordinary skilled professional have done?
H: “A man need not possess the highest expert skill, it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”
what case says that trainee drs owe the same standard of care as qualified drs
Wilsher v Essex
explain the case of Wells v Cooper in relation to adults
F: D fitted a door handle in his home. C a visitor pulled on the handle and it came away in his hand causing the visitor to fall down several stairs
H: the D was to judges against the standards of a reasonable competent person doing that activity (not against the standards that would be expected of a professional carpenter) this was the sort of job that a reasonable householder might do for himself and that was the appropriate standard.
explain the case of Nettleship v Weston in relation to adult learners
F: a learner driver mounts a curb and collides with a lamp post
H: even a learner is expected to take the same standard of care of the ordinary average driver.
explain the case of Mullin v Richards in relation to children
F: two 15yr old girls play fighting with plastic rulers one breaks and C is blinded in one eye from a shard of plastic
H: the risk is not one that a reasonable 15 yr. old would appreciate.
explain the case of Paris v Stepney borough council in relation to the special characteristics of the claimant
F: Paris was blind in 1 eye when working for the D a piece of metal blinded him in his other eye
H: a reasonable employer would have provided protective eyewear
explain the case of Bolton v Stone that links to the low magnitude of the risk
F: women walking past a cricket ground as hit on the head by a cricket ball, the wall around the ground was 5 meters high
H: magnitude of the risk was low as there had only been 6 balls hit out of the ground in the past 25yrs and no one had been injured before. ground not liable
explain the case of Miller v Jackson that links to the high magnitude of the risk
F: houses were next to a cricket ground which has been there 70 years one house had garden wall 102 feet from the wicket and cricket balls kept landing in their garden. Cricket clubs erected a high fence but 8/9 balls a year went into the garden causing damage
H: the magnitude of the risk was high as there had been 8/9 balls in the past year.
explain the case of Latimer v AEC in relation to the cost of precautions
F: C worked in D’s factory and slipped up on the factory floor. the factory floor became flooded and the water had mixed with oil. D’s put up warning signs mapped up and placed sawdust in the most used places.
H: the risk could only have been eliminated by closing the factory. this was an unreasonable cost to D.
