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135 Cards in this Set
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Negligence |
Breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant |
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Elements of Negligence |
1. Did D owe C a duty of care? 2. Was D in breach of that duty? 3. Did D's breach cause damage to C? 4. Are any defences available to D? |
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Donoghue v Stevenson |
Neighbour Principle/Wide Rule: reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (persons so closely and directly affected by the act that you should reasonably have them in mind. Manufacturer duty to consumer: narrow rule |
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Wilsons v Clyde Coal |
Employer's common law duty to employee to provide: 1. competent staff 2. adequate material 3. proper system of work and supervision (Non-delegable duty) |
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Page v Smith |
Primary Victim (PPH) test: 1) in area of danger 2) reasonable foreseeability of physical injury (Risk of PPH doesn't need to be foreseeable |
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Alcock v CC South Yorkshire |
Secondary victim (PPH) must suffer medically recognised psych illness/shock induced physical condition: 1) foreseeability of psych harm 2) proximity of relationship (love etc) 3) proximity in time and space 4) proximity of perception |
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Caparo Novel Duty test |
1) reasonable foresight of harm to C 2) sufficient proximity of relationship 3) fair, just and reasonable |
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Bourhill v Young |
C walked to the scene of the crash, she was not a foreseeable victim of D's negligence, no duty owed (Use for Caparo test) |
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Caparo Proximity element |
Lack of proximity: eg omissions to act, pure economic loss, some pure psychiatric harm |
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Marc Rich v Bishop Rock Marine Co |
Fair, just and reasonable element for Caparo test, D was a non-profit charity, not fair, just or reasonable to impose a duty of care |
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Baker v T E Hopkins |
Duty owed by driver to a rescuer Volenti defence not held, foreseeable that a rescuer would be harmed by negligence, rescuers actions do not amount to voluntarily assuming risk CN: damages reduced is rescuer shoes wholly unreasonable disregard for own safety |
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Hill v CC West Yorkshire |
Police don't owe a duty to any particular individual, but to the public at large, duty would be too wide and open floodgates (policy reasons) C the mother of victim of Yorkshire Ripper |
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Kirkham v CC Greater Manchester |
Police owed duty of care to individual, had assumed responsibility of suicide risk prisoner, closer proximity than Hill v CC West Yorkshire |
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Stovin v Wise |
Omissions: No general duty to act - no duty to alleviate danger, even if known |
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East Suffolk Rivers Catchment |
Statutory power to act does not create a duty to act, but if you intervene you aren't liable if you act carelessly, unless you make things worse |
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Dorset Yacht |
Exception to general omissions rule: duty to act positively when there is a special relationship - Home Office vicariously liable for employees who should have foreseen possible risk of damage by young offenders in their care |
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Carmarthenshire |
Exception to general omissions rule: duty to act positively when there is a special relationship- Education Authority's duty to prevent children running into the road and causing harm |
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Breach |
Law: court assesses how D ought to have behaved in the circumstances Fact: court then decides whether D's conduct fell below required standard |
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Standard of Care |
Reasonable person in the circumstances |
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Blyth v Birmingham Waterworks |
Breach of duty: negligence is doing what a reasonable person wouldn't do |
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Glasgow Corp v Muir |
Breach of duty: reasonable person standard of care test is objective, what a reasonable person would foresee, not what the D could foresee |
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Bolam v Friern |
Special standard of care: Skilled D Must meet standard of their profession, no breach if acting in accordance with widely accepted/common practice in field |
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Wells v Cooper |
Under skilled D: amateur (carpenter) measured against reasonably competent amateur (carpenter), not own degree of personal competence Inexperience not a relevant consideration |
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Nettleship v Weston (standard of care) |
Under skilled D: learner driver held to same standard as an experienced and skilled driver Inexperience not a relevant consideration |
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Mullin v Richards |
Special Standard of Care: child defendant expected to show care expected of ordinary child of same age |
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Standard of Care Factor: Magnitude of Risk |
Bolton v Stone: small risk, justifiable not to take steps to eliminate Miller v Jackson: greater magnitude of risk, increased frequency and damage |
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Standard of Care Factor: Cost and Practicability |
Latimer v AEC: reasonable not to take steps to eliminate risk if D would incur great cost for small reduction, BUT great expense is not an excuse if risk of injury is great |
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Standard of Care Factor: Purpose |
Watt v Hertfordshire: abnormal risk justified for saving life or limb (rescuer fireman) |
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Standard of Care Factor: Fantastical Possibility v Reasonable Probability |
Carmarthenshire: unique, not fantastical Mansfield v Weetabix: unexpected disability, not a reasonable probability D could have guarded against |
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Standard of Care Factor: Standard of Current Knowledge |
Roe v Mott: risk judged according to information available to D at the time, was not known that anaesthetic could become contaminated in this way, all proper procedure precautions had been taken |
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Proving Breach |
1) burden of proof on C 2) balance of probabilities - evidence and witnesses (Res Ipsa Loquitur- inference of negligence) |
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Civil Evidence Act 1968 |
s11: if D has a criminal conviction, they will be presumed in civil proceedings to have committed said offence (higher burden of proof in criminal) |
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Causation Factors |
Novus Actus Interveniens & Remoteness: 1) cause of damage? 2) was there an intervening act? 3) was the damage too remote? |
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Barnett v Chelsea |
BUT FOR: but for D's breach of duty, would the harm to C have occurred? |
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Wilsher v Essex |
5 different possible causes of harm, C couldn't satsify 'But For' test in respect of D |
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Material Contribution to harm (Causation) |
Bonnington Castings: 2 sources of dust inhalation, one of which D was negligent, D's breach therefore materially contributed to harm McGhee: material contribution extended to cover material increase in risk of injury |
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Mesothelioma (Causation) |
Divisible Injury: Holtby v Brigham, damages apportioned according to length of time worked for each employer over which asbestosis developed Compensation Act 2006: D's liable for whole harm |
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2 Injuries (Causation) |
Performance Cars: later D who causes subsequent injury only liable if he makes it worse Rahman v Arearose: D's liable for different damages, but both liable for consequential psych harm |
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Scott v Shepherd (Causation) |
Instinctive intervention doesn't breach chain of causation (fireworks in a crowd, actions of 3rd party) |
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Knightley v Johns |
D not liable as he couldn't foresee the intervening act (car going wrong way in tunnel, actions of a 3rd party, causation) |
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Rouse v Squires |
Actions of a 3rd party causation: lorries both materially contributed to single injury Civil Liability (Contribution) Act- contribution between tortfeasors |
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Chain of Causation |
Need to look at the facts, unlikely to be broken by something D should have foreseen. Medical treatment: carries inherent risks, only breaks chain if grossly negligent. |
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Novus Actus (intervening act/chain of causation) |
McKew: C acted unreasonably after D's negligence and broke chain of causation (legs prone to giving way after accident caused by D, went down stairs) Wieland: C behaved reasonably and didn't break chain of causation (glasses and neck brace, fell down stairs) If C acts carelessly, D can use a partial CN defence. |
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Re Polemis remoteness |
D can be held liable for all direct consequences flowing from the wrongful conduct, regardless of foreseeability |
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Wagon Mound remoteness |
Was the damage reasonably foreseeable? Case: no one expected oil to ignite, wasn't reasonably foreseeable |
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Hughes v Lord Advocate |
Similar in type (remoteness): injury must be reasonably foreseeable, not necessary to foresee precise way in which injury is caused |
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Egg-shell skull rule |
(Remoteness): you take your victim as you find them, full extent of the damage given the victims vulnerability doesn't need to be foreseeable |
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Volenti (Consent) Defence to Negligence |
Complete defence: voluntary assumption of risk, not sufficient to know risk exists, must know full extent and wilfully consent |
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Nettleship v Weston (Volenti) |
Volenti: C must have full knowledge of nature and extent of risk, must willingly consent to accept risk of being injured by D's negligence |
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Smith v Baker |
Volenti: employees act under a duty, no real freedom of choice |
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Haynes v Harwood |
Connected to Baker v TE Hopkins (Volenti): rescuers not considered to have voluntarily assumed risk, acting under compelling legal, moral, social duty. As long as conduct was in all circumstances reasonable, natural and probable consequence of D's negligence. |
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Pitts v Hunt |
Illegality defence: injury must be so closely connected to the criminal enterprise |
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Contributory Negligence (partial defence) |
C failing to take reasonable care for own safety, contributing to their own damage. Law Reform (CN) Act 1945: damages reduced for finding of CN partial defence |
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Froom v Butcher |
Contributory Neg finding: passengers failing to wear seatbelts, contributing to injury, have damages reduced (causal link must be established) |
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Gough v Thorne |
CN: child's damages reduced for finding of CN, after being held to standard of ordinary child of same age |
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Jones v Boyce |
Dilemma Rule: D's negligence may put C in a situation of imminent danger, compelling C to take some action to save himself |
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Civil Liability (Contribution) Act 1978 |
Contribution between tortfeasors: D may recover a contribution from any other person, another D, liable for the same damage Claimants: where 2 or more persons are liable for damage, can recover full amount from either, or both |
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Remedies for Negligence |
Nominal: amount for vindication of rights, usually covers cost of bringing claim Compensatory: to put C back in position he would have been in had tort not been committed (mitigation: shouldn't be better off either) |
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One Action Rule |
Only one claim, on one set of facts, one lump sum award |
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Special Damages |
Can be calculated precisely at time of trial, eg pre-trial medical expenses and loss of earnings |
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General Damages |
Cannot be calculated precisely at time of trial, includes pain and suffering, loss of amenity, loss of future earnings etc |
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Wise v Kaye |
Pain and suffering damages, non-pecuniary general. Subjective test, C must be aware of injuries, cannot claim if unconscious. Based on figures in Judicial College guidelines. |
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West v Shephard |
Loss of amenity damages, non-pecuniary general. Can claim whether conscious or not, a more active C could claim more. |
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Law Reform (Personal Injuries) Act |
C can recover private medical care costs from D, C cannot be found to have failed to mitigate loss. |
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Mitigation of loss |
C must take all reasonable steps to keep losses claimed to a minimum. |
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Pre-trial special damages (Pecuniary) |
Net earnings after deductions of tax, NI, pensions (normally deducted at source). Should include perks. |
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Post-trial loss of earnings |
Multiplicand x Multiplier (gross annual salary-deductions) x remaining working life expectancy Mitigation: lower multiplier taken to account for ability to invest lump sum |
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Pickett v British Rail |
C with reduced life expectancy can recover for lost earning years when there is a dependant relying on the income. Figure reduced for amount that would have been spent on self. Married, dependant children: 25% Married, no dependant children: 33% |
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Schneider v Eisovitch |
Damages: cost of services are recoverable (housework, nursing care etc), need must flow from injury caused by D's negligence. 3rd party cannot claim. Recoverable for professional carer and relatives. |
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Housecroft v Burnett |
Damages (services provided): where spouse/relative has given up employment the cost is recoverable, but shouldn't exceed commercial rate of care. No loss in wages: amount will be between nil and commercial rate. |
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Fatal Accidents Act 1976 |
Dependants can sue for death of person on whom they were dependant, for loss of dependancy, bereavement, funeral expenses etc. Claim parasitic on claim of deceased, no claim if deceased had no claim, or if their claim is completed. See Statute book. |
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Latimer v AEC |
4th common law duty of care to employee: - provide a safe place of work |
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Hudson v Ridge |
Employer common law duty to provide competent staff (Wilsons & Clyde Coal): duty arises when employer knows, or ought reasonably to have known, of risk another employee poses |
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Employer's Liability (Defective Equipment) Act 1969 |
Employers common law duty (Wilsons & Clyde Coal) to provide adequate equipment: saves employee from having to identify and sue manufacturer, C needs to show fault on someone's part (causation) |
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General Cleaning Contractors v Christmas |
Common law duty for safe system of work applies regardless of where employees are at work. Common law duty is more onerous than OLA 1957, which only applies when employer is the occupier. |
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Walker v Northumberland |
Duty to provide safe system of work can extend to stress at work |
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Hatton v Sutherland |
Stress at work duty: 1. was injury to health through stress at work reasonably foreseeable? 2. consider nature and extent of work done by employee 3. consider signs from employee (Employer entitled to take what employee says at face value, and that employee up to normal pressures of job) |
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Caswell (Contributory Negligence) |
Allowances made for employees working in noisy conditions, in repetitive work. |
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Health and Safety at Work Act 1974 |
Obligation to provide safety measures, breach is a criminal offence, also actionable in civil claim (higher standard of care than common law Neg.) |
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Enterprise and Regulatory Reform Act 2013 |
Health and Safety at Work breaches no longer actionable in civil claim. |
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Vicarious Liability |
Employer liable for actions of employee who has committed a tort in the course of employment. Can be jointly liable, or employee can be primarily liable. (Employer more likely to have insurance and ability to pay) |
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'Course of Employment' (Vicarious liability) |
Salmond & Heuston: wrongful act authorised by employer, wrongful and unauthorised mode of doing some act authorised by employer |
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Rose v Plenty |
Vicarious Liability: prohibited act done to further employers business, therefore in course of employment |
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Twine v Bean's Express |
Vicarious Liability: prohibited act didn't further business, therefore not in course of business |
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Lloyd v Grace/Lister/Maga |
Intentional torts (crimes) usually don't fit Salmond definition of course of employment, except where there is sufficient connection between crime and work employed to do. |
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Lister v Romford |
Vicarious Liability: right to claim indemnity from employee, general agreement to not do this other than when there's evidence of collusion/wilful misconduct |
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Ready Mixed Concrete |
Vicarious Liability: employees are individuals under a contract of service (Independent Contractor, by contrast, would provide own tools, provide services to several people, have own business interests) |
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Pure Economic Loss |
Murphy v Brentwood: no liability in absence of physical injury, not recoverable, generally no duty of care, less close relationship Consequential loss is recoverable though. |
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Spartan Steel |
Pure Economic Loss: negligent damage of 3rd party property causing loss to C, relationship not close enough for duty of care |
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Hedley Byrne |
Negligent statement: Pure Economic Loss exception when D has assumed responsibility, and C relies on the statement reasonably, there is a duty of care. Liability was successfully excluded, pre-UCTA |
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Caparo v Dickman |
Negligent statement (PEL) test: 1. adviser must know purpose of advice 2. must know it will be communicated to advisee 3. advice must be acted on to C's detriment |
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McNaughton |
PEL Negligent statement: insufficient proximity, accountant didn't know information would be communicated for that purpose. |
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Chaudhry v Prabhakar |
No general duty in social situations for negligent PEL statements, except where C is clear she will rely on advice from D who holds himself out to be more knowledgable |
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Spring v Guardian Assurance |
PEL Negligent Statement duty when providing employment references. |
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UCTA 1977 |
D acting in course of business, C may not be consumer (business). Cannot exclude for personal injury or death. Other loss/damage subject to reasonableness requirements. |
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CRA 2015 |
D must be trader, C must be consumer. Cannot exclude for personal injury or death. Other loss/damage subject to fairness requirements. |
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Smith v Eric Bush |
UCTA Reasonableness factors: 1. equal bargaining power? 2. could advice have been obtained from alternative source, given costs and time? 3. difficulty of task undertaken 4. practical consequences (money at stake, ability to bear loss, insurance)? |
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Pure Psychiatric Harm |
No physical impact or injury to C, injury must be caused by sudden shock, medically recognised psych illness or shock induced physical condition. Psych harm following injury is consequential, recoverable under pain and suffering. |
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White/Frost |
Rescuers have no special status for PPH, when they don't fall under umbrella of primary or secondary victim. |
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Chadwick v British Railways Board |
Rescuer was a primary victim (in area of danger at risk of injury), so owed duty for PPH. |
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Wilkinson v Downton |
Intentional psych harm is a separate tort from Negligence. |
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Occupiers Liability Act 1957 |
Common Duty of Care: s2.2 duty to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose he is permitted to be there. |
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Wheat v E Lacon |
An Occupier has a sufficient degree of control over the premises. |
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Glasgow/Phipps |
Child visitors require higher standard of care, need more than warnings. |
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Roles v Nathan |
Skilled visitors: lower standard of care, can be expected to guard against risks usual to the job. |
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OLA 57 Warnings |
Warnings must be adequate, and provide sufficient warning that a visitor can be reasonably safe. An adequate warning would mean the C cannot prove breach of duty. |
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Haseldine v Daw |
OLA 57: Independent contractors, occupier couldn't reasonably check their work due to technical nature, duty discharged. (Independent contractor can then be sued in common law negligence) |
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OLA 1984 |
Duty owed to non-visitors, trespassers. Individuals with no express or implied permission to be on premises. Robert Addie & Sons Duty if occupier is aware of danger, trespassers in vicinity of danger, risk is one he would reasonably be expected to offer trespassers protection from. |
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Tomlinson v Congleton/Revil v Newbery |
OLA 84 liability is for state of premises, not actions of C or D. |
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Donoghue v Folkestone |
OLA 84: no reasonable grounds to believe trespasser would swim a that time of year. Courts consider nature/extent of risk, type of trespasser, cost and practicality of precautions. |
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AC Billings v Riden |
Non-occupier, independent contractors may be liable in common law negligence, even to trespassers (Buckland v Guildford) |
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Defective Products |
Claim may lie in Negligence, under Consumer Protection Act, or Contract Contract usually more onerous, favourable to consumer. |
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Murphy v Brentwood (Defective Products) |
If only loss is value of the product itself, or cost of repairing/replacing, no duty, as this is pure economic loss. |
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Donoghue v Stevenson (defective products) |
Must establish: 1. defendant is manufacturer 2. item causing damage is product 3. C is consumer 4. no reasonable possibility of intermediate examination |
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Consumer Protection Act 1987 |
Additional cause of action for defective product, but cannot recover for same loss. Wider class of C's, anyone suffering damage caused by defective (unsafe) product. |
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CPA 1987 Elements |
s2. Who is liable? s3. Defect, what level of safety can consumers expect? Must show causation s4. Defences? s5. What damage is actionable? s7. No exclusion from liability |
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A v National Blood Authority |
Blood defective even though tests for Hep C had not been developed yet, consumer expectation that blood would be safe. More onerous CPA duty than Neg, which is all reasonable care. |
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Commission v UK |
CPA 1987 defence: development risks/state of the art, for drugs, medicine, pharmaceutical products (policy consideration) |
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Hadley v Baxendale |
PEL is recoverable in Contract. |
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Private Nuisance (Trespass to Land) |
Unlawful interference with use and enjoyment of land, or some right over, or in connection with it. Not actionable per se. |
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Private Nuisance Locus Standi |
C must have a right to exclusive possession of the land Hunter v Canary Wharf |
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Private Nuisance D's |
- creator of nuisance - current occupier of land from which nuisance originates - employee of D acting in course of employment (vicarious liability) - independent contractor where nature of work at risk of being a nuisance (Matania) - nuisance created by visitor, predecessor in title, trespasser, where occupier has adopted or continued nuisance (Sedleigh-Denfield) |
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Heads of interference for Private Nuisance |
Hunter v Canary Wharf - encroachment on neighbours land - direct physical injury to neighbours land - interference with quiet enjoyment |
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Substantial and unreasonable interference for Private Nuisance |
Sedleigh-Denfield According to ordinary usages of mankind living in society |
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Private Nuisance Factors |
Duration and frequency (Spicer v Smee: isolated incident) Excessiveness (Matania) Locality (St Helen's Smelting) Public Benefit (for injunction) Malice (Hollywood Silver Fox Farm) |
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Private Nuisance Defences |
Prescription (Sturges v Bridgman) Statutory Authority (Allen v Gulf Oil) Act of God (Wringe v Cohen) |
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Private Nuisance Remedies |
Damages (Hunter v Canary Wharf) for cost of repair, loss of value, loss of amenity value of land Injunctions: mandatory, prohibitory, anticipatory (equitable, discretionary) Miller v Jackson (public benefit, no injunction), Kennaway v Thompson (low public benefit, injunction) |
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Wheeler v Saunders |
Planning permission not an effective defence for Private Nuisance, only Parliament can take away private rights, not local councils. |
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Trespass to Land Locus Standi |
C must be in possession of the land, right to immediately occupy and exclude. (depends on facts) |
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Trespass to Land: Direct, Intentional Interference |
Act must be voluntary, doesn't need to know he is trespassing or intend the consequences, must flow directly from D to the land. Actionable per se, no need to prove damage. |
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Smith v Stone |
No trespass to land if forcefully thrown, not voluntary. |
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Basely v Clarkson |
Trespass to land, voluntary, direct action. |
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Trespass to Land: Causation and Remoteness |
Normal principles, (but also actionable per se), remoteness test is Re Polemis which is more onerous. |
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Trespass to Land Defences |
Justification/consent: permitted by law (police warrant), owners express/implied permission, necessity |
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Bocardo |
Land definition: includes surface, building, plants, sub-soil Bernstein: also reasonable airspace |
