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18 Cards in this Set
- Front
- Back
- 3rd side (hint)
The first step in establishing a claim of negligence is determining whether a duty of care exists. What are the two leading cases and what does each case determine? |
1. Donoghue v Stevenson which established the "neighbour test" 2. Caparo Industries Plc v Dickman which established the three stage test. |
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The definition of a neighbour was established in Donoghue v Stevenson. What is the definition and why is the case important. |
1. The definition is: "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question"
2. The case is important because it created a new legal relationship between manufacturers and consumers, and because it opened the way for a tort of negligence to be expanded to meet new situations. |
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What is the purpose of the three stage test established in Caparo Industries plc v Dickman? |
The purpose is to determine whether a duty care exists, and, a duty of care can only exist if the three conditions are met. |
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What are the three criteria in Caparo Industries plc v Dickman that must be met in order for a duty of care to exist? Name a relevant case for each criteria. |
1. Reasonable foreseeability: Would a reasonable person have foreseen that there was a risk that the C might be injured or harmed by D's acts or omissions (Smith v Littlewoods)
2. Proximity: Was there sufficient proximity (a legal relationship) between the C and D (Watson v BBBC) (Relationships where it is established that a duty of care is owed is: road users, healthcare workers, employers)
3. Fair, just and reasonable: Is it fair, just and reasonable, in public policy grounds, to impose a duty of care on D (L v Reading BC) |
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Public policy is an important consideration in negligence. What does s1 Compensation Act 2006 provide? |
That a court should consider the wider policy implications of their decisions to impose liability on someone. |
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Considerations relating to public policy and whether a duty of care is imposed on D, can be broadly split under 3 headings. What are they? |
1. Statutory authorities - the basic position is that courts are reluctant to impose on public authorities any liability towards individuals (Hill v Chief Constable of West Yorkshire)
2. "Opening the flood gates" - the courts have been very reluctant to award damages in cases where there is a risk that the "flood gates could open" to similar claims. This applies particularly in the area of psychological harm.
3. Rescuers - a duty of care is owed if a reasonable person in the rescuer's position would have felt obliged to assist; but NO duty of care is owed if the rescuer's intervention is regarded as unjustifiable and unnecessary interference (Note: because helping others is generally regarded as a good thing, the courts tend to find rescuer's were obliged to act, meaning they can be awarded damages if they're injured. |
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Psychological harm (i.e Nervous Shock) is when C suffers a clinically recognised mental injury or psychiatric illness brought upon by a sudden event. Who would the law recognise to which a duty of care is owed in relation to nervous shock? |
The law has never recognised a bystander (Bourhill v Young) but has accepted that damages should be paid to those whose nervous shock is a reasonably foreseeable consequence of D's negligence (McLoughlin v O'Brian) |
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"Nervous shock" which can be compensated, is different to normal sorrow and grief, which cannot be compensated. Name leading case. |
Hinz v Berry |
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(Consequential) Psychiatric harm (e.g PTS), when resulting from a physical injury has long been claimable in negligence. Much more difficult is pure psychiatric injury. A claim can be made in two situations, what are they? |
1. Where someone suffers nervous shock because they've been involved in an accident, or because they've witnessed one;
2. Where somebody suffers workplace stress (not in this book) |
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In relation to psychiatric injury cases, the law distinguishes between primary victims and secondary victims. Explain the difference and name leading case example. |
Primary victims - someone directly involved in the accident or who is within the "zone of physical danger" Page v Smith
Secondary victim - someone not directly involved in accident and in no physical danger, but who suffers psychiatric injury as a result of what he sees or hears happening to others. |
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In any case involving nervous shock, what must the claimant establish? |
1. D owed a duty of care to C 2. D breached that duty of care 3. C had a clinical recognised psychiatric illness that is considered to be potentially worthy of compensation and was caused by the D negligence. |
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Explain the current rules for establishing liability for psychiatric injury. |
1. Must be a claimable harm (medically recognised condition caused by sudden shock); AND EITHER: A) Primary victim - 1.Foreseeabilty, C must prove D could reasonably foresee some kind of injury and Proximity, C must have been within potential range of physical harm or in the dangerzone. (Note: not distinguish between physical/psychological) B) secondary victim - these Csmust meet the rules established in Alcock v CC of South Yorkshire 1. Foreseeabilty, psychiatric harm must be reasonably foreseeable in a person of ordinary fortitude 2. Proximity, • close relationship of love and affection between C and victim • C must be physically close to the accident • C must actually see or hear the accident or immediate aftermath with his own senses. |
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What was relevant about the case White v CC of South Yorkshire Police? |
The claims failed because there had been no threat to their own safety. It shows that rescuers who suffer psychiatric damage are not automatically classified as primary victims. |
In relation to claims involving nervous shock by police officers who have been present at the Hillsborough disaster. |
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Is an employer liable for psychiatric damage to an employee? |
Yes, if they are, or should be, reasonably able to foresee that the employee is particularly vulnerable to mental illness: Walker v Northumberland County Council |
C suffered a nervous breakdown because of work pressure. After the promise of assistance, he returned to work only to find nothing had changed and then suffer a further breakdown causing him to have to give up work permanently. The court found that although first breakdown was not foreseeable the 2nd was. |
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Consider the way in which issues that apply uniquely to nervous shock claims relate to the basic requirements for any claim in negligence. |
In order for a C to recover damages for psychological harm, the normal requirements for a negligence claim must be met: 1. D must have owed a duty of care to C - this is the case either if C is a primary victim to whom injury is foreseeable (page v smith) or if C meets the criteria from Alcock (secondary victim)
2. D must have breached the duty of care owed to C
3. C must have suffered a recognised psychiatric illness caused by consequences of D's breach of duty. |
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Explain the policy consideration which have enabled rescuers to claim damages? |
By holding that they were compelled to act by the situation, rather than to interfere unnecessarily. Therefore the D owes a duty of care to the rescuer. |
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Explain the policy consideration which have enabled rescuers to claim damages? |
By holding that they were compelled to act by the situation, rather than to interfere unnecessarily. Therefore the D owes a duty of care to the rescuer. |
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In cases of psychiatric harm, can someone claim damages for normal grief and sorrow? case? |
No. Hinz v Berry |
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