Law - AS - AQA - Unit 2 - Tort - Mindmap in A Level and IB Law

Created by: djbdom
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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Law - AS - AQA - Unit 2 - Tort

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