Law - AS - AQA - Unit 2 - Tort

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  • Created on: 04-01-16 11:10
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  • Tort
    • Proving Negligence
      • Duty of care (1st)
        • 3 part test
          • From Caparo v Dickman
          • Foreseeable (1st)
            • Is it foreseeable that Ds actions could have a detrimental impact upon the well being of others, with the consideration of what D does or fails to do
              • Lord Atkins Neighbor Principle
            • Kent v Griffiths
              • It was foreseeable that by an ambulance turning up late it could have a detrimental impact upon the patient
          • Proximity (2nd)
            • Has to be a proximity between the C and the D in both space and time
              • Must be shown by C that there was a proximity in both space and time, between C and D at the time of the breach
            • Boughhill v Young
              • No proximity between C and D because C went to the scene of the accident
            • D can be represented by a product/item they are responsible for
              • Dongehue v Stevenson
                • D was represented by the bottle of ginger beer
          • Fair, Just and Reasonable (3rd)
            • Used to exempt some parties from owing a duty of care when it is impractical and potentially damaging to society
            • Hill v Chief Constable of West Yorkshire
              • It was deemed that the police did not owe a duty to future victims of criminals they failed to catch
            • This is a flood gate ruling
            • Is it 'right'
      • Breach of Duty (2nd)
        • Reasonable man test
          • Blyth v Birmingham Water Works (Intro)
            • Stated to see if a duty has been breached we have to use the reasonable man test
              • If Ds actions fall below the standards expected from the reasonable man, then he is in breach
          • Significant Characteristics (1st)
            • Sometimes Ds actions will not be compared to the reasonable man
            • If D holds himself as being an expert or professional
              • Ds actions will now be compared to the reasonable professional of that profession
              • Bolam v Friern Barnet Hospital
                • Where Ds actions were compared to the reasonable doctor
            • If D is a learner
              • They will not receive any protection in law for their inexperience. Must show same level of care as reasonable man or reasonable professional if in a professional capacity
              • Nettleship v Weston
                • Learner driver breached their duty because he failed to reach the standards of the reasonable driver
            • If D is a child
              • To see if they have breached their duty they will be compared to the reasonable child of that same age
              • Mullins v Richards
                • D was not found in breach of duty due to the age of D (15 y/o)
        • Various Risk Factors (2nd)
          • Characteristics of C
            • If C has characteristics, e.g. age, vulnerability, height, weight etc that makes them vulnerable then D us expected to take extra precautions in order to ensure Cs well being
              • Increases standards expected from D to meet his duty of care, as the reasonable man would have taken these precautions
            • Paris v Stepney BC
              • D was required to show extra care as C was blind in one eye
          • Size of the Risk
            • The greater the risks associated with an activity the greater the number of precautions the reasonable man would have taken to prevent damage from occurring
              • Therefore D must also take these precautions to meet the standard requirement of care
            • Bolton v Stone
              • There was no breach as D had carried out precautions to a level that the reasonable cricket club would have done based upon the limited risk
          • Practicality of Precautions
            • The easier, cheaper and more practical the precautions are to take the more likely the reasonable man would have taken them
              • So D would be expected to take them too
            • Murray v Harringay Arena
              • The protective screen around the ice rink met the standards of the reasonable ice rink. If the screen was any higher it would damage the experience of the event
        • Res Ipsa Loquitir (Hardly Asked)
          • Translates to "Let the facts speak for themselves"
          • Used when the facts show a high likelihood that D is in breach
          • Switches the burden of proof from C to D
            • So D must prove he is not in breach
          • Scott v London St Katharine's docks
            • C was struck by a bag of sugar, D was presumed in breach of duty of care
        • Burden of Proof (Hardly ever asked)
          • In civil law burden of proof is placed on C
            • Lower standard of proof than criminal law
          • C must prove, on the balance of probability, that D has been negligent
      • Damage Resulting (3rd)
        • Causation
          • If the first two parts for negligence have been met is must also be established that Ds breach of duty is the cause of the damage
            • Barnett v Chelsea & Kensington Hospital [1969]
              • the hospital owed a duty and breached that duty. However, the breach did not cause the death of C as the poison would have killed him anyway
          • Where the damage has been caused by the breach OR another factor the claim will fail
            • Willsher v Essex Area Health Authority [1988]
          • If the damage has been caused by Ds breach AND another factor the claim will succeed
            • Wardlaw v Bonnington Castings
        • Remoteness of Damage
          • If the damage occurring is so remote that no reasonable man would have foreseen its occurrence, then D cannot be expected to have taken precautions to prevent it
          • Wagon Mount
            • D owned a duty and breached that duty to C, damage resulted from the breach but the claim failed
              • No reasonable man would have foreseen the sea catching fire as a result of the breach
        • Smith v Leech Brain
          • This case is interchangeable with both causation and remoteness of damage. Either below Wahon Mount or in connection with wardlaw
          • D must take their C as they find them. Any characteristic of C which increases the amount of damaged caused by Ds breach will not break the chain of causation
          • Cs benign tumor on his lip contributed to the resulting damage but D was still liable
    • Calculation of Damages
      • Application question
      • Two categories
        • Special Damages
          • Damages that are easier to calculate financially
          • E.g. Damage to property, loss of earnings until trial (after trail is general damages), medical expenditure up until trial and other expenses such as transport up until trial
        • General Damages
          • Damages that are difficult to put a financial figure on
          • E.g. Loss of earnings after trail, medical expenditure, loss of amenity (damage to quality of life) , pain and suffering etc.
      • Payments of Damages (Hardly comes up)
        • Lump Sum
          • A court can order D to pay the damages awarded in a lump sum
            • This requires D to pay C all the damages in one go
        • Structured Settlement
          • If D is  ordered by the courts to do this then D will pay a certain amount in regular payments (usually monthly)
            • Over a period of time
            • Done when D would have difficulty paying all of the damages in one amount
    • Three Track Case Management System and Court Allocation
      • Types of Tracks
        • These values constantly change. They came into force on 1st April 2013, as a result of s.26 (subsection 6) of the 2013 practice directive
          • Small Claim (Less than or up to £10,000)
            • If a personal injury above £1,000 then it will go to fast track
              • Fast Track (From £10,000 to £25,000)
          • Fast Track (From £10,000 to £25,000)
          • Multi track (Above £25,000)
      • Court Allocation
        • To see where the claim will go in first instance we look at the amount being claimed and the reason for the claim
        • County Court
          • Claims below £100,000
            • Property comes under these, not personal, however personal injury may be combined with personal injury if its the same person claiming
              • Claims above £100,000
              • This comes from Practice Direction 7
        • High Court
          • Claims above £100,000
        • When not given the amount being claimed for in the case (hardly asked)
          • Claim Form
            • N1 form filled in by claimant
              • Requires Cs and Ds name and address, brief outline and fact of claim and a breakdown of the amount being asked for
          • Response to claim from defendant
            • Defendant gets a defendants response pack and has 3 choices
              • Admit Liability
              • Admit liability but question amount being claimed
              • Deny Liability
              • If D fails to respond courts may find in favor of C
        • Any personal injury case below £50,000 must got to the county court, above £50,000 will go to the high court

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