negligence

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  • Created by: Emma13
  • Created on: 01-03-17 18:52
What is the definition for negligence?
Breach of a legal duty of care owed by D to C which results in damage to C which is not intended by D.
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What are the elements of negligence?
Duty of care, Breach of Duty, Causation of loss which is not too remote.
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How can you test for a novel duty?
Caparo - 3 stage test
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What is the 3 stage test for novel duty set out in Caparo?
Reasonable foresight of harm , Sufficient proximity of relationship between C and D, Fair,just and reasonable to impose a duty.
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What was established in Bourhill v Young?
D must have reasonably foreseen harm to this C
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What was established in Palmer V Tees HA?
Proximity contrast of duty owed from doctor to victim of patient.
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Which 2 cases are the tests for novel duty situations?
Hill v Chief Constable of West Yorkshire Marc Rich v Bishop Mame Co ltd, The Nicholas H
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what is the general rule for omissions?
No liability for omissions to act
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What is the exception for this rule?
duty to act positively can arise where D is in position of power or control over another, Either over C (who suffers the harm) or Over a 3rd party who then causes harm to C
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Which are the cases that establish this exception?
Homeoffice and Carmarthenshire and Stovin v Wise
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What is the test to establish breach?
Ordinary reasonable person test
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What does this test assess?
Defendant must meet the standard of care of the ordinary reasonable person In the defendant's position
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What does the case of Bolam establish?
The skilled D, D holds himself as having special skill, D must meet standard of reasonable person with that skill.
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What does the case of Wilsher v Essex and Nettleship v Nelson establish?
Just because the D is inexperienced the standard of care can't be lowered.
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What does the case of Mullins v Richards establish?
The D must meet standard of ordinary reasonable child of D's age.
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What are the 5 relevant factors in determining whether D's conduct fell below standard of care?
Magnitude of risk,Cost and practicality of precautions, defendant purpose, common practice,the current state of knowledge.
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What does Bolton v Stone and Paris v Stepney Borough Council establish?
The magnitude of risk - the likelihood of injury when determining where D's conduct fell below S.O.C
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What does Latimer v AEC ltd establish?
The cost and practicality of precautions when determining the relevant factors in determining if D fell below S.O.C
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What does Watt v Hertfordshire County Council establish?
The defendants purpose (public interest/value to society) when determining whether D's conduct fell below S.O.C
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What does Bolam v Friern establish?
Common practice is a relevant factor when determining whether D's conduct fell below S.O.C
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What does Roe v Ministry of Health establish?
The current state of knowledge is a relevant factor when determining whether D's conduct fell below S.O.C. Have to assess D on time he asked - D not liable
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What does Res Ipsa Logmitur mean?
Facts speak for themself, allows courts to infer B.O.D as B.O.P then on D to prove no breach. D would have to show how there was no negligence.
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What is the test for causation in fact?
'But For' test - Barnett v Chelsea 'but for the D's breach would the C's harm have occurred?'
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What does Performance Cars v Abraham establish?
Factual causation - did D's breach cause any additional harm? No
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What is the exception to 'but for' and when would you use it?
Fitzgerald v Lane - multiple causes together contributed to C's harm, D made a material contribution to C's harm.
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What did Holton v East Berks establish?
The B.O.P on C, all or nothing approach as long as C can establish 51% chance D caused harm it is treated as D being liable for causing the harm.
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What is an intervening act and what does it do?
I.A which comes between D's original breach and harm suffered by C, I.A can break chain of causation so that is become the cause of harm rather than D's breach.
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Can a third parties actions effect causation?
Chain unlikely to be broken by act D ought to have foreseen.
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What does Scott v Shepherd establish?
Instinctive intervention, the event was reasonably foreseeable and therefore D was liable.
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What does Knightly v Johns establish?
Negligent intervention, not reasonably foreseeable as act was grossly negligent and the police where liable for the second accident.
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What does Lamb v Camden London Borough Council establish?
Reckless or intentional intervention, not reasonably foreseeable as deliberate act by X is more likely to break chain of causation.
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What does McKew v Holland establish?
The action of the C, will only break the chain if C's actions entirely unreasonable in all circumstances.
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What is the test for remoteness ?
The Wagon Mound 1.
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What does this test establish?
If a reasonable person would not have foreseen the damage, the C cannot recover from D. Ask - could D have r.f the kind of damage that C sustained? If not it is too remote and can't recover.
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What is the similar type rule and what is the authority for it?
Provided the damage was r.f, D is liable, even if the precise way in which it occurred was not foreseeable. Hughes v Lord Advocate
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What is the egg shell skull rule?
provided type of harm is foreseeable, D is liable for full extent, even if precise extent not foreseeable. Take your victim as you find him.
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What does restitutio in integrum mean?
restoring the C to the pre-tort position.
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What types of damages can be recovered in negligence?
financial losses,non-financial losses (PSLA) not P.E.L.
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What does divisible injury mean for damages that the D has to award?
Proportionate damages, Severally liable as in Holtby.
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What does indivisible injury mean for damages that the D has to award to C?
Joint liability - C can recover damages in full from either D as contribution between tortfeasors. D's all jointly liable.
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What can the D do in this case?
They can claim contribution between tortfeasors under Civil Liability (Contribution) Act and claim back damages from the other D's.
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Does death effect a claim?
No cause of action survives for benefit of estate under Law Reform Act. C's Estate can bring claim against D even if C is dead.
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What can you claim under the Fatal Accidents Act?
Loss of dependency and bereavement award (12,980£) only available for parents of minor child and a spouse.
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What is contributory negligence and what does it mean for the claim?
C's party at fault and his contributed to the harm suffered. As in Freeman v Butcher, the damages may be reduced. The Law Reform (Con.Neg) sets out this concept of sharing the blame.
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What is voluntarily assuming the risk (volenti) and what does it do to the claim?
Where the C consented to the full extent and nature of the risk. This will exonerate the claim and no damages will be paid. Morris v Murray
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What does Illegality do to the claim?
Defeats the claim where actions arise out of an illegal activity. Gray v Thames Train.
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Other cards in this set

Card 2

Front

What are the elements of negligence?

Back

Duty of care, Breach of Duty, Causation of loss which is not too remote.

Card 3

Front

How can you test for a novel duty?

Back

Preview of the front of card 3

Card 4

Front

What is the 3 stage test for novel duty set out in Caparo?

Back

Preview of the front of card 4

Card 5

Front

What was established in Bourhill v Young?

Back

Preview of the front of card 5
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