Law of Tort - Paper 2 (Negligence) - Flashcards in A Level and IB Law

What does tort mean and what language does it derive from?

wrong

french

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What are torts?

legal obligations (do not need to be agreed in
advance like contractual obligations) that give rise to liability if breached

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Who do tortious obligations generally apply to?

everyone

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In which case and by who was the existence of a general duty of care established?

Donoghue v Stevenson

Lord Atkin

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What did Lord Atkin decide about the general duty of care in Donoghue v Stevenson?

you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbor

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How did Lord Atkin define a neighbor?

persons so closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when direction my mind to the acts or omissions which are called into question

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Applying this definition, what did Lord Atkin held
about the manufacturer of a bottle of ginger beer?

they owed a duty of care to avoid harming consumers by producing contaminated drinks

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What are the three things that are needed to be shown to establish liability in negligence?

- the defendant owed the claimant a duty of care
AND
- the defendant breached that duty
AND
- the breach of duty caused the damage or loss the claimant suffered

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What is the standard of proof as to which the claimant must prove these three things?

on the balance of probabilities

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What are four case examples of pre existing duty of cares?

NETTLESHIP v WESTON - driver owes duty of care to passenger and other road users
WHITEHOUSE v JORDAN - doctor owes duty of care to patient
CONDON v BASI - sportsman owes duty of care to another sportsman in same match
WALKER v NORTHUMBERLAND CC - employe

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If the issue has not yet been decided by a previous case, what test will apply and what does this test involve?

Caparo v Dickman

a) harm/damage caused is reasonable foreseeable
AND
b) there is proximity between the parties
AND
c) it's fair, just and reasonable to impose a duty of care on the defendant

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What kind of test is part a) and what will the judge decide when considering if the harm/damage caused is reasonably foreseeable?

an objective test

the judge must decide whether or not a reasonable man would have foreseen the harm that occured

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What are two case examples for part a) and what was held in each?

KENT v GRIFFITHS - was reasonably foreseeable if an ambulance was late to call, the waiting patient could suffer harm

BOURHILL v YOUNG - not reasonably foreseeable that someone 50 yards away from motorbike accident , who did not witness it, could suffer

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What does part b) mean in terms of proximity?

closeness of relationship
OR
in time and space

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What is a case example with proximity in terms of space and what was held?

BOURHILL v YOUNG - no proximity in terms of
space as the claimant did not witness the accident and went voluntarily to look at the aftermath

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What is a case example with proximity in terms of relationship and what was held?

MCLOUGHLIN v O'BRIEN - there was proximity in terms of relationship as even though the claimant did not witness the accident she saw the immediate aftermath and has 'close ties of love and affection' with the victims

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What is a case example with proximity in terms of reliance and what was held?

DONOGHUE v STEVENSON - there was proximity in terms of reliance as the claimant relied on the manufacturer of the ginger beer

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What was held about proximity in the case of 'Hill v CC West Yorkshire Police'?

there was no proximity between the police and the relatives of the yorkshire ripper's last victim

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What was held about proximity in the case of 'Osman v Ferguson'?

there was proximity between the police and the victims of an attack as the police had specific information as to the potential identified victim

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When will the judge not impose a duty on the defendant in relation to part c) and why?

if it unfair or against the wider interests of society
(public policy), often the case where public bodies e.g police and fire brigade are concerned

imposing liability would open the floodgates to a large number of claims that could not be afforded

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What did the case of 'Mulcahy v MoD' hold relating to part c)?

not fair, just and reasonable to impose a duty of care on the army towards its soldiers in battle conditions

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What did the case of 'Capital & Counties plc v Hampshire CC' hold relating to part c)?

it was fair, just and reasonable to impose a duty of care on the fire brigade as theur positive act of turning off the sprinklers had made the fire much worse

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What will the consider of the defendant when testing for a breach of duty?

what is expected of the defendant
and whether he failed to do it/did it to a poor standard

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What is the standard expected as 'Blyth v Birmingham Waterworks' says?

that of the reasonable man in the same circumstances as the defendant

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What is ignored when considering the reasonable man, with a case example?

inexperience

Nettleship v Weston - learner driver
judged against standard of reasonable driver

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What is a case (with what happened) that shows
some allowances may be made where children are concerned?

Mullins v Richards

- 15 year old girl injured schoolmate whilst fencing with plastic rulers
- judged against standard of reasonable child of similar age under similar circumstances

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Who will professionals be judged against and what case is used here?

the standard of a reasonable competent professional in that field

Bolam v Friern

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What did the case of Bolam v Friern show?

the standard required of a doctor was that he
followed a course of action that was supported by a reasonable body of medical opinion

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How did the case of Bolitho v City and Hackney Health Authority modify the Bolam test?

clarified that the practice of such a reasonable body of medical opinion must be responsible and capable of logical analysis

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What did Wilsher v Essex AHA say about junior doctors?

junior doctors will be judged by the same standard as a qualified doctor

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What is the next section of breach of duty after 'the reasonable man test'?

how much care would the reasonable man take

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What are the four factors the court will consider when deciding the standard of care expected by
the reasonable man and how will these each affect the care expected of the defendant?

1) likelihood of harm/injury-> more likely the harm = greater care that is expected
2) seriousness of consequence-> higher standard of care expected if serious injury is forseeable
3) cost of reasonable precautions-> lower the cost = higher standard expec

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What are two cases for 1) likelihood of harm or injury?

Bolton v Stone

Hilder v Associated Portland Cement

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What happened and what was held in the case of Bolton v Stone?

- claimant hit by cricket ball which was hit 100 yards and
cleared 17 foot fence ( fence had only been cleared 6 times in 28 years)
- no breach as court held defendant took reasonable precautions in the small risk

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What happened and what was held in the case of Hilder v Associated Portland Cement?

- defendants allowed children to play football on waste ground with a low wall behind goal
- balls often went over wall into the road
- motorcyclist struck by ball causing fatal crash
- courts held defendants were in breach of duty as they did not take r

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What is a case example (including facts and decision) for 2) seriousness of consequence?

Paris v Stephney BC

- claimant blind in one eye
- defendants were in breach of duty as they did
not provide him with safety goggles at work when he was blinded in the remaining eye due to the foreseeable seriousness of the consequence

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What is a case example (including facts and decision) for 3) cost of reasonable precautions?

Latimer v AEC

- defendants put down as much sawdust as they could after a flood in their factory
- claimant slipped on untreated area of floor and was injured
- no breach of duty as they took reasonable precautions and closing the whole factory would hav

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What is a case example (including facts and decision) for 4) social utility?

Watt v Herts CC

- fireman injured when crushed by lifting gear that couldn't be properly secured as it had been loaded on to the wrong type of vehicle
- court held the reasonable fire brigade would prioritise responding to an emergency quickly rather tha

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When will res ispa loquitor apply?

where:
1) defendant has exclusive management of the situation
AND
2) there is no other explanation for the claimants damage other than the negligence of the defendant

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Who does the burden of proof then shift to to prove they are not negligent and what will be the standard of proof?

the defendant

on the balance of probabilities

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What happened in the case of 'Scott v St Katherine Docks' and was res ispa loquitor applied?

- bags of sugar fell from the defendants warehouse onto the claimants head
- defendant had exclusive management of the warehouse and the harm could not have happened if they had taken proper case
- res ispa loquitor did apply

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What happened in the case of 'Mahon v Osborne' and was res ispa loquitor applied?

- swabs were left inside the victim after an operation
- as the operation was under the defendants exclusive management and there was no other explanation for the damage
- res ispa loquitor applied

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What types of causation must be established?

both factual and legal

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What is the test for factual causation and what is a case to use for factual causation?

if the damage suffered by the claimant would not have occurred BUT FOR the defendants breach of duty

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What happened and what was held in the case of Barnett v Chelsea Hospital?

- victim, who had arsenic poisoning, died having
been sent home from hospital without being seen by a doctor
- the patient would have died anyway, despite hospitals breach, so it couldn't be said he would have suffered the damage BUT FOR the hospitals

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What does novus actus interveniens mean for factual causation?

even if the BUT FOR test is satisfied, the chain of causation linking the breach of duty with the
damage suffered by the claimant can be broken in when a new act intervenes in one of three ways

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What are the three ways, with case examples, novus actus interveniens may occur?

a) intervening act of the claimant (claimant is responsible for their own damage)-McKew v Holland
b) intervening act of nature (unforeseen and independent of defendants negligence)-Carslogie Steamship Co v Royal Norwegian Government
c) intervening act of

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What is legal causation also known as and what does it mean, with a case example?

remoteness of damage

the defendant will only be liable for damage that is reasonable foreseeable and if the damage is not reasonably foreseeable, it is refereed to as being 'too remote'

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What happened and what was held in the case of The Wagon Mound No.1?

- not foreseeable that defendants breach of duty in spilling bunker oil, which was hard to ignite, from their ship in Sydney Harbor would result in the claimants wharf burning down
- damage by fire was not foreseeable and so too remote
- defendants were n

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However, what are the three situations in which
legal causation can be satisfied even if not entirely reasonable foreseeable?

1) TYPE OF DAMAGE CAUSED - if general type of damage is reasonable foreseeable, it doesn't matter if the precise type was not
2) SEQUENCE OF EVENTS - if type of damage that results from breach of duty is reasonably foreseeable, the exact sequence of event

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What was held about 1) type of damage caused, in the case of Bradford v Robinson Rentals?

- the defendants did breach their duty when providing claimant with a van with no heating in freezing conditions
- defendant was liable for claimants frostbite as cold related injury was reasonably foreseeable even if the frostbite was not

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What was held about 2) sequence of events, in the case of Hughes v Lord Advocate?

- defendants did breach duty by leaving paraffin lamps unattended next to hole in road they were working on
- defendants liable for claimants burn injuries as type of damage was foreseeable when paraffin
lamps were left unattended even if exact sequence

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What was held about 3) the eggshell skull rule, in the case of Smith v Leech Brain?

- was foreseeable that defendants breach of duty could cause claimants husband a minor burn
- so they were also responsible for the cancer that developed and his ultimate death even though he was pre disposed to develop cancer

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Law of Tort - Paper 2 (Negligence)

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