NEGLIGENCE SUMMARY!

  • Created by: arfa
  • Created on: 23-04-19 12:42
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  • Negligence
    • Actionable Damage
      • Rottweil v Chemical and Insulating Co: tried to claim for risk of getting cancer due to chemical exposure. held damage is being "worse off, physically or emotionally".
      • Psychiatric harm
        • Hinz v Berry: medically recognised psychiatric illness can be awarded. Not grief, sorrow, worry etc
        • Primary and secondary victims
          • Page v Smith: car accident caused his previous illness to become chronic so couldn't work again. courts made primary victim distinction if in range of foreseeable physical injury .
            • McFarlane: oil rig explosion killed 164, c worked their and feared for his life and safety. wasn't in zone of physical danger so claim failed. held any fear for one’s own safety needed to be objectively reasonable in the circumstances.
            • Eggshell Skull  Rule: even if claimant is more susceptible to injury, they can still claim for all their suffering
          • Gali Atkinson v Seghal: c was mother of daughter who died in car accident. She saw immediate aftermath and saw disfigured body in morgue. initially courts held she wasn't primary victim and didn't satisfy alcock so no claim. appealed due to uninterrupted sequence of events
        • Corr v IBC: negligence of employer caused physical injury, resulting in depression and suicied. Employer liable for full extent of loss
        • Bourhill v Young: pregnant woman saw motorbike accident, suffered miscarriage from shock. held psychiatric harm must be reasonably foreseeable to person of normal fortitude. no claim
        • Dooley v Commel: c operated a crane, rope snapped and load dropped near other workers. he thought he killed them but no injuries occurred, suffered shock, unable to work. damages recovered.
        • OccupationalStress
          • Hatton v Sutherland: teacher complained of work stress, worked 70 hrs a week, took 3 weeks off, couldn't cope w/ workload when returned, had to have an early retirement due to stress.
            • held once employee speaks up about job stresses, it is reasonably foreseeable, there is a duty of care
          • Hartman v South Essex mental health trust: healthcare officer in prison had to remove body from rope prisoner hung himself w/. developed psychiatric illness.
            • held it was reaosnably foreseeable to cause harm, should have been supportive provisions
          • Butchart v Home Office: prisoner was suicidal, repeatedly placed w/ suicidal prisoners, developed psychiatric illness after cellmate committed suicide. .
            • held although no employee: employer relationship, autorities knew psychiatric harm was foreseeable.
        • Wild v Southend University Hospital Trust: due to hospitals negligence, foetus died and still birth had to be delivered. hospital liable for mother but not father.  It was not enough for c to have witnessed the manifestation of the consequenceof d's negligence, baby in womb, he didn't see it die. he did not satisfy Alcock.
    • Duty of Care
      • Development of the doctrine
        • 1. Donghue v Stevenson: snail at bottom of beer bottle, established that a duty of care is owed to your "neighbour" i.e. anyone that you can anticipate would be harmed by your actions or omissions
        • 2. Anns v Merton: flat suffered structural defects due to poor foundations. established that there has to be sufficient relationship proximity between
        • Caparo v Dickman: C purchased company shares, relying on a negligently written report. Held there is a 3 stage test to establish a duty of care: 1. sufficient relationship of proximity 2. damage was reasonable foreseeable 3. it is fair, just and reasonable to impose a duty of care
      • Public Bodies and Emergency Services
        • established that theres a duty of care between a dr and patient
        • Darnley v Croydon NHS Trust: patent had a head injury,
          • UKSC held receptionist DID owe a duty of care to not provide misleading info
          • A&E receptionist said he'd be seen in 4-5 hours. he went home after 20 mins, triage nurse was acc going to see him after 30 mins. Head injury became permanent.
        • Capital and Counties Plc v Hampshire CC: fire broke out, fire brigade turned off sprinkler system. held that duty of care owed as increased damage
        • Hill v CC of West Yorkshire. Police don't owe duty of care to public as  it would lead to defensive practice and divert their attention
          • Overruled in Osman v UK, Police do owe a duty of care  and in some cases have a duty to take protective measures
    • Breach of Duty
      • ASK what standard of care is expected and did d fall below standard
      • Did they fall below standard? Factors: reasonable foreseeability of harm, cost and practicality of precautions, likelihood of harm and seriousness of harm
      • Reasonable foreseeability of harm
        • Roe v Minister of Health. patient became paralysed after being injected with contaminated anasthetic.
        • not foreseeable for dr's to know about it due to lack of scientific advancement.
        • You can only be expected to take precaution on something you can reasonably foresee
      • Likelihood of harm
        • Bolton v Stone: c hit by cricket ball that flew out of ground, not foreseeable or LIKELY
          • "an ordinary careful man does not take  precautions against every foreseeable risk"
        • Haley v London electricity board: construction in park, sign warned pedestrians of hole, blind claimant fell in hole, held there was a reasonable likelihood a blind person would cross the street and fall
      • Seriousness of harm
        • Latimer v AEC Ltd: oil spillage after rainstorm in factory, used saw dust to soak up oily water, not enough saw dust, c slipped
          • Held they didn't need to take the extreme reaction of closing factory, a reasonable step was taken by using saw dust
        • Wagon Mound: d transferred oil to harbour, it spill into harbour. a piece of hot metal fell into oil and caught fire, this was a v unlikely consequence but caused extensive damage
          • even if the risk is small, if preventing it presented no difficulty, reasonable person would eliminate it. all they had to do was turn tap off
        • Watt v Hertfordshire CC: vehicle was placed on firetruck, causing a firefighter to be injured when ir was sent out. held that bc they were acting in an emergency, they may reasonably take more risk
      • Professional standard of care
        • Bolam: held that professionals should be held to a higher standard of care than the "man on top of the Clapham Omnibus". They're instead held to standard of a person with the same professional skill
          • Bolam: c not given anything to relax or restrain him during electrical current therapy, he broke his hip. held that drs are not liable for their actions if a responsible body of medical opinion agreed.  (which they did)
          • - advances medicine -judges aren't best placed to give medical -however can result in differential practice from doctors
          • Bolitho: 2 yr old had breathing difficulties, dr didn't examine him, had cardiac failure and died. dr said even if she did attended she wouldn't have incubated him as it was too risky.
            • held: shift from bolam, if the opinion of the medical body  has no logical basis, courts can reject it.
        • Wilsher v Essex: court draws distinction between a junior dr and senior dr. If a junior dr is doing tasks of a junior dr, the standard is lower, if they're doing the task of a senior dr the standard is higher
        • Wells v Cooper: d tried to fix door handle, screws too short, handle broke when c opened it & he fell. held he was an amateur and met the standard of care of an amateur.
        • Maynard v West Midlands Health Authority: dr performed biopsy as a diagnostic test, other drs wouldve been more cautious and done blood tests first.
          • court held the judges may have preference for one body of opinion but this isn't sufficient to establish negligence. meaning for negligence, no body can agree with the opinion.
        • INFORMED CONSENT
          • Sidaway: c needed a back operation, 1% risk of paralysis. dr didn't disclose and she ended up paralysed. da reasonably body of opinion also wouldn't have disclosed this risk. so held dr wasn't negligent
            • Overuled in Montgomery v Lanarkshire health board: 10% risk that foetus was too big and she would have a permanent injury after birth. dr witheld info as c section wasn't in best interest. held the dr has to tell patient about material risks
              • the risk is material "if a reasonable person in patients position would be likely to attach significance to the risk"
                • there is still "therapeutic privilege". if disclosing the risk would be seriously detrimental to patients health they don't have to
    • Causation
      • Factual causation: was the d's negligence the cause of c's loss?
      • Legal causation: is the damage too remote?

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