Negligence
Brief test of knowledge on:
-Duty of Care -Breach of Duty of Care (including standard of care) -Damages -Egg Shell Skull Rule and Res Ispa Loquitur -Novus Actus Interveniens -Psychiatric Harm -Types of Damage Awarded (Remedies, as well as payment of damages and types of economic loss)
1.0 / 5 based on 1 rating
- Created by: olivia1238
- Created on: 22-12-20 01:56
Definition of negligence is …. as in....
A) the omission to do something which the reasonable man would do or would not do
B) Blythe V Birmingham Waterworks
B) Blythe V Birmingham Waterworks
1 of 50
A) The case in which the neighbour principle was developed and B) by whom?
A) Donoghue V Stevenson
B) Lord Atkin
B) Lord Atkin
2 of 50
What was the problem with this principle?
It opened the floodgates and allowed for a compensation culture, allowing people to abuse the system for their own personal gain
3 of 50
A) In which case was the neighbour principle redeveloped and B) which test was used in its place?
A) Caparo V Dickman
B) The Caparo Test
B) The Caparo Test
4 of 50
What are the three points to the Caparo test (with cases)?
1) reasonable foreseeability to harm as in Kent V Griffiths
2) Proximity- time, space & relationship as in Mcloughlin V O'Brian
3) Fair, just & reasonable to impose a duty of care as in Robinson V CC of West Yorkshire Police
2) Proximity- time, space & relationship as in Mcloughlin V O'Brian
3) Fair, just & reasonable to impose a duty of care as in Robinson V CC of West Yorkshire Police
5 of 50
What standard of care is a learner driver held to? (with case)
the standard of the reasonable man as in Nettleship V Weston
6 of 50
What standard of care is a child held to? (with case)
the standard of care reasonably expected of an ordinary child at that age as in Mullin V Richard
7 of 50
what is the standard of care a sportsperson is held to? (with case)
"did D do what the reasonable sportsperson would have done?" as in Cordon V Basi
8 of 50
What standard of care is an amateur held to? (with case)
The standard of a reasonably skilled amateur as in Wells V Cooper
9 of 50
What is the standard of care held to professionals?
The standard of care held to professionals with a skill is that of the reasonable man with the same skill of expertise. Professionals are judged by the standard of the profession as a whole
10 of 50
What was the significance of the Point of Law in the case of Bolam V Friern Hospital Management Committee?
A doctor is not liable if they have acted in accordance with a practice accepted as proper by other doctors; as there were other doctors who would've acted in the same way that D did, they had acted accordingly and had not breached their duty of care
11 of 50
What was the problem with this?
Wrongful acts could slip though the law as long as the majority had agreed with it
12 of 50
Which case changed this?
How and why?
How and why?
Bolitho V City and Hackney Health Authority- although there was a body of doctors agreeing, the lords held that a doctor could still be negligent in rare cases.
This brought about a two-part test:
1) did the doctor act in accordance with a practice acce
This brought about a two-part test:
1) did the doctor act in accordance with a practice acce
13 of 50
Risk Factors- case for costs:
Latimer V AEC Ltd
14 of 50
Risk Factors: Case for public benefit:
Watt V Hertfordshire
15 of 50
Risk Factors: Case for sensitivities of the C:
Paris V Stepney
16 of 50
Risk Factors: Case for size of the risk:
Haley V London Electricity Board
17 of 50
Risk Factors: Case for knowledge of the risk:
Roe V Minister of Health
18 of 50
What is Res Ipsa Loquitur and what case was this used in?
'the thing speaks for its self'. The burden of proof switches from the C to the D
The C has to show
-the thing causing the damage under control of D
-the cause of the accident is unknown
-the accident would not normally occur without negligence
e.g. Sc
The C has to show
-the thing causing the damage under control of D
-the cause of the accident is unknown
-the accident would not normally occur without negligence
e.g. Sc
19 of 50
What is factual causation and what test is used?
Involves showing the links between the D's act/omission and the injury
case: Cork V Kirby Maclean Ltd
But-for test by Lord Denning is used
an example of this put to use is
Barnett V Chelsea and Kensington Hospital Management Committee
case: Cork V Kirby Maclean Ltd
But-for test by Lord Denning is used
an example of this put to use is
Barnett V Chelsea and Kensington Hospital Management Committee
20 of 50
What is legal causation?
For D to be liable they must show that the reasonable man could foresee the type and kind of injury and that it was not too remote from the cause
21 of 50
Case for remoteness is legal causation:
The Wagon Mound (No.1) where the type of damage was too remote from the original negligent act of spilling oil
22 of 50
Case for reasonably foreseeable type of injury:
Hughes V Lord Advocate in which the D will still be liable if the type of injury is reasonably foreseeable, even if the way in which the injury happens is not
(Doughty V Turner Asbestos- not liable as it was not foreseeable that the explosion would happe
(Doughty V Turner Asbestos- not liable as it was not foreseeable that the explosion would happe
23 of 50
What is the Egg Shell Skull Rule? (With case)
Take your victim as you find them- if the injury is foreseeable, D will be liable for the full extent of the injuries if they are more serious due to a pre-existing condition of the C
e.g. Smith V Leechbrain in which although the death might not have bee
e.g. Smith V Leechbrain in which although the death might not have bee
24 of 50
What is a Novus Actus Interveniens?
A new intervening act that breaks the chain of causation
25 of 50
What are the three things which may be intervening acts? (with cases)
1) Act of the third party as in Baker V Willoughby
2) Act of the claimant as in McKew V Holland and Hannen Cubits Ltd
3) Act of God as in Carslogic Steamship Co Ltd V Royal Norwegian Government
2) Act of the claimant as in McKew V Holland and Hannen Cubits Ltd
3) Act of God as in Carslogic Steamship Co Ltd V Royal Norwegian Government
26 of 50
Which case defines what psychiatric harm is?
Hinz V Berry-
"In English law, no damages are awarded for grief or sorrow caused by a person's death or are to be given for the worry of children or for financial strain or stress"- Lord Denning
Damages are recoverable for nervous shock or for any recogn
"In English law, no damages are awarded for grief or sorrow caused by a person's death or are to be given for the worry of children or for financial strain or stress"- Lord Denning
Damages are recoverable for nervous shock or for any recogn
27 of 50
What is a primary victim (with case):
Those who suffer psychiatric injury as a direct result of D's negligence (often nervous shock is an additional injury)
Case- Page V Smith in which provided that some kind of personal injury was foreseeable, it did not matter whether the injury was physic
Case- Page V Smith in which provided that some kind of personal injury was foreseeable, it did not matter whether the injury was physic
28 of 50
What is the duty of care owed to primary victims?
The same as for personal injury provided that some kind of personal injury is foreseeable so the Caparo Test is used
29 of 50
What is a secondary victim (with case):
Someone who, when witnessing an accident, suffers injury consequential upon the injury, or fear of injury, to a primary victim
Case- Alcock V CC of South Yorkshire Police (Hillsborough Stadium Disaster) in which the Caparo Test cannot be used. Instead C
Case- Alcock V CC of South Yorkshire Police (Hillsborough Stadium Disaster) in which the Caparo Test cannot be used. Instead C
30 of 50
What are the issues with the conditions that C must prove?
-people who were watching the event on TV or listening to it on the radio were not close in proximity and therefore could not claim
-those who are not a spouse, fiancée, parent or child of the victim had to prove their close tie of love in order for thei
-those who are not a spouse, fiancée, parent or child of the victim had to prove their close tie of love in order for thei
31 of 50
What is a rescuer (with case):
C suffers nervous shock as a result of being in a rescue operation due to D's negligence
Case- White V CC of South Yorkshire Police in which in order to prove that they were owed a duty of care, they must demonstrate that they were in the zones of dange
Case- White V CC of South Yorkshire Police in which in order to prove that they were owed a duty of care, they must demonstrate that they were in the zones of dange
32 of 50
Which quote from this case shows the inconsistency and unfairness of this law?
"The law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify...…, it must be left to parliament to undertake the task of radical law reform"- Lord Steyn
33 of 50
What is the aim of awarding damages?
To put the injured party in the same position as they would've been in had the tort not occurred
34 of 50
What are general damages?
Damages that cannot be easily calculated
35 of 50
What are special damages?
Damages that can be easily calculated before the trial e.g. loss of earnings
36 of 50
What are nominal damages?
These are awarded when there has been little or no harm caused and the court wishes to award a very small amount (used for things such as trespassing)
37 of 50
What are contemptuous damages? (with a case example)
These are awarded when the level of harm has been low and the court believes that an action should not have been taken even though D has technically been liable
Case- Grobbelaar V News Group Newspapers Ltd in which the jury initially awarded £85,000 but
Case- Grobbelaar V News Group Newspapers Ltd in which the jury initially awarded £85,000 but
38 of 50
What are aggravated damages? (with case example)
These are awarded over and above what is needed to put C back in their position before the tort. The additional sum of money is given when the initial harm was made worse due to an aggravating factor e.g. malicious behaviour
Case- Johnson V Steele in whi
Case- Johnson V Steele in whi
39 of 50
What are exemplary damages? (with case
example)
example)
These are used to punish the D for committing the tort
Case- Rookes V Barnard in which these can be awarded in circumstances such as:
1) oppressive action by servants of the government
2) where the D's conduct was calculated by him to make a profit
3) w
Case- Rookes V Barnard in which these can be awarded in circumstances such as:
1) oppressive action by servants of the government
2) where the D's conduct was calculated by him to make a profit
3) w
40 of 50
What quote from Lord Devlin can be taken from this case to show the problem with exemplary damages?
"The object of damages in the usual sense of the term is to compensate. The object of exemplary damages are to punish and deter"
41 of 50
What are pecuniary losses?
Loss of earnings
42 of 50
What are non-pecuniary losses?
Loss of amenity (enjoyment of life) and pain and suffering
43 of 50
The C is expected to take reasonable steps to mitigate any losses. What happens when the C fails to do this?
They will not be entitled to the full amount owed to them.
For example, if the C was not wearing a seatbelt then the damages would be reduced by 25%
For example, if the C was not wearing a seatbelt then the damages would be reduced by 25%
44 of 50
What are the 2 main ways the courts can decide to pay out the damages to the C?
1) Lump sums
2) Structured settlements
2) Structured settlements
45 of 50
What are lump sums and how are they paid out?
What are the pros and cons to this?
What are the pros and cons to this?
They are the full amount of money which C is owed, and it is all paid out at once.
This can be unfair to the C if their condition worsens in the future, likewise it can be unfair to the D if the C's condition improves
However this can be good as C can i
This can be unfair to the C if their condition worsens in the future, likewise it can be unfair to the D if the C's condition improves
However this can be good as C can i
46 of 50
What are structured settlements and how are they paid out?
What is a potential advantage of this?
What is a potential advantage of this?
(Under The Damages Act 1996)
They allow for damages to be paid periodically- this protects the C's condition who may become worse and to D who only needs to pay while C's condition requires it
This can be appealed- the amount to pay can be increased or
They allow for damages to be paid periodically- this protects the C's condition who may become worse and to D who only needs to pay while C's condition requires it
This can be appealed- the amount to pay can be increased or
47 of 50
What are consequential economic losses?
These result from a physical injury e.g. loss of income due to paralysis; this type of loss is usually recoverable
48 of 50
What are pure economic losses?
These do not arise from a physical injury. This type of loss is not recoverable e.g. loss of profit
49 of 50
Which key case is a good example of someone trying to claim for both these types of losses?
Spartan Steel & Alloys Ltd V Martin & Co (contraction) Ltd,
-the physical damage to the factory's furnaces and metal as well as the loss of profit from the damaged metal was recoverable
-the loss of profit from the metal that was not melted during the ti
-the physical damage to the factory's furnaces and metal as well as the loss of profit from the damaged metal was recoverable
-the loss of profit from the metal that was not melted during the ti
50 of 50
Other cards in this set
Card 2
Front
A) The case in which the neighbour principle was developed and B) by whom?
Back
A) Donoghue V Stevenson
B) Lord Atkin
B) Lord Atkin
Card 3
Front
What was the problem with this principle?
Back
Card 4
Front
A) In which case was the neighbour principle redeveloped and B) which test was used in its place?
Back
Card 5
Front
What are the three points to the Caparo test (with cases)?
Back
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