AS law - Tort

Revision for duty of care, breach of duty, damage, negligence, causation, coincidence and strict liability.

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Duty of Care

Duty of care started by the case of Donoghue v Stevenson, which established the neighbour test, which has evolved to todays Caparo 3 part test (established by the case Caparo v Dickman). The 3 part test clearly has 3 parts to it .

1) Damage forseeable - was the damage obvious - Kent V Griffiths - where a patient was suffering a asthma attack and the ambulance didn't arrive at a reasonable time, with no excuse why they were late and the patient suffered a respitatory arrest.

2) Suffiecient/reasonable proximity - was there a sufficiently close enough relationship - Osman v Fergison the police knew there was a real risk and the court decided there was sufficient close relationship between the C & D.

3) Fair, just and reasonable - The aim of this rule is to prevent the opening of the floodgates, which would could cause the police to spend most of their time avoiding law suits rather than protecting the public. A case is Capital and Counties plc v Hampishire County Council. The fire sprinklers were ordered to be turned off during a fire and the fire spread causing more damage.

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Breach of Duty

2 questions need to be asked to start with.

1) What is the standard of care for a reasonable man and what is the standard for an expert?

2) Has the D fallen below that standard?

There are 3 risk factors.

Degree of risk - Is the risk forseeable? If the risk is unknown there is no breach. Roe v Minister of Heath, cracks in anaesthetic vial that couldn't seen by the naked eye.

Likelyhood of risk - Where the risk is to small, there is unlikely to be a duty of care. Bolton v Stone where a cricketball was hit over a 17 foot fence and hit a passerby. Only 6 balls had been hit over the fence in the last 30 years, so there was too small of a risk.

Cost and practicality - Precaustions need to be taken, but not excessive precautions, as in Latimer v AEC, during a flood in a factory, wood shavings were placed on the floor, but a worker slipped. Nothing else could have been done except to close the factory, which would not have be practical.

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Damage

If a breach of duty is proven, the damage needs to be proven as a result of the breach. The "but for test" is used. Barnett V Chelsea and Kensington Hospital, the doctor owed a duty of care to the V (who died of poisoning), but by the time the V went to the Hospital there would have been nothing the doctor could have done, so the death of the victim was not a result of the doctors breach of duty.

Damage is too remote from the orignal negligent act. Wagon mound no.1, oil was spilled on a harbour and during welding work it caught fire. the oil needed to heated at exteme temperatures to burn, so the original act of spilling oil and burning the wagon mound as too remote.

Damage is forseeable, even if the way it happened wasn't. Hughes v Lord Advocate, where a manhole was left unattended, covered with a tent and paraffin lamps around it. Two kids went into the tent and accidently dropped a parrifin lamp into the manhole, causing a explosion.

Thin skull rule is where damage is forseeable, but it's more serious due to something strange about the claiment, then the defendant is liable as in Smith v Leech Brain

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Negligence

Requires proof or duty, breach and damage. Look at previous cards (duty of care, breach of duty and damage)

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Causation

There are two types of causation, factual causation and legal causation.

Factual causation uses the but for test. A case is R v White, where he tried to poison his mother for the inheritence, however she died of natural causes.

Legal causation is where the D must be the substatial and operating cause of the injury or event. R v Smith, during a argument, Smith stabbed the V with a bayonet, however he took the V to the army medic. The medic failed to notice a puntured lung and so the V died.

There are 3 ways in which causation can be broken -

1) By a unforseeable, natural event.

2) By the actions of the victim.

3) By the intervention of medical treatment R v Jordan where the victim refused a blood transfusion due to religiuos beliefs and died.

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Coincidence and Stirct liability

Coincidence requires the actus reus and mens rea to occur at the same time. A case is Fagan, where he parked his car on a policemans foot and refused the remove the car (the actus reus) and walked away (showing the mens rea). It can also be proven by a series of continuing events, as in Thabo Meli, where the V was severly beaten and then thrown off a cliff (to make it look like a accident), the victim survived the attack and fall but later died of sun exposure.

Strict liability assumes the mens rea was present. They include health and safety regulations, weights and measure or traffic offences. They are designed to be easy to prove to save time in court. A case is Callow v Tillstone, where the D (a butcher) had a vet check his meat was fine to sell and sold the meat, but the meat was contaminated. The fact he had a vet check the meat was irrelevant. Selling contaminated meat was illegal, therefore the D was guilty.

However, if the crime involves social stigma (effects social status), then the mens rea cannot be presumed. In the case Sweet v Parsley, where the D rented a home to students, who used it to take drugs. However the punishment would effect her social status (because she would have been jailed) so the mens reas could not be presumed.

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Res Ipsa Loquitur

Latin, which means the case speaks for itself. When it is obvious what happened, as oin the case Scott v London and St Katherine Docks. Bags of sugar fell on the victim, injuring him.

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Comments

Ollie Downey

Excellent.

Sarah

Thanks :) 

I don't mean to pick, but I thought it was R v Blaue where the victim refused a blood tranfusion and died? Jordan was the one where a dose of medicine was given to a patient who was allergic to it, and then the next day was given the same medication - it's the only case which has broken the chain of causation because of medical treatment as the courts said it was 'palpably wrong treatment'. Sorry if this offends you! I hope it helps x

Michael

Sarah you are correct, they have the cases mixed up, it's so important you don't do this in the exam. The victim was given a large dose the day after which caused their death.

Gabby Tracey

cheers

Shannon

Just what i needed to refreash my memory, thanks.

Ruth

In the Bolton v Stone case it's a 5 metre fence this may be easier to remember then saying 17foot but this is really good thanks and I don't want to sound like a ***** but I've alwayed learned there are 5 risk factors: special characteristics of the D, special characteristics of the C, size of risk , all practical precautions been taken & benefits of taking the risk

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