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50 Cards in this Set
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Abbelby v Erie Tobacco Co |
- material discomfort an annoyance= nuisance - take into account local standardé surroundings - D manufacturing tobacco on their premises, neighbours call in nuisance - odours are nauseating, some say produces dizziness Issue: is this nuisance? Analysis:- not sickening in the medical sense but very disagreeable - when looking at nuisance, you must look at surroundings. A person in a populated city cannot complain of smog. But also, it is not enough of a defence to say that the neighbourhood in the Printing district is noisy and the P should deal with it Ratio: annoyance and inconvenience caused by the tobacco company was nuisance and required an injunction because $$ not sufficient Holding: injunction ordered |
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Rogers v Elliott |
Adds to Abbelby- Nuisance= Material discomfort and annoyance for the ordinary purposes of life, FOR THE ORDINARY PERSON, not with uncommon sensitivity - church bell rung several times a day - P had sunstroke and suffered convulsions from noise - the right to make noise must be measured in reference to the degree of annoyance which others may be reasonably required to submit to - it isnt based on what the current neighbours complain about, its about what the reasonable/ordinary person would experienceRatio: There is no nuisance if the plaintiff is of particular and uncommon sensitivity, because it would set too uncertain of a standard. Holding: case dismissed |
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Fontainebleau Hotel Corp v Forty-Five Twenty-Five, Inc |
- no right to light - just financial annoyance doesnt count as nuisance. If the ONLY thing that happened is your property value has declined, you cant claim nuisance. It must be linked to the enjoyment and use of property - Fontainebleau is building their hotel right next to 4525, and 4525 argues that it will block the sunlight from their pool deck, wants construction halted - you cant use your land in a way that hinders the rights of others - if we let this be a right, land development would be hindered - you cant have a right to a “view” so you cant have right to light Holding: finding for Fontainebleau |
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"sic utere tup at aloemum non leadas” |
so use your own as to not injure the other Fontainbleau- this is about the LEGAL rights of others not just injuring him in some way |
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Note case: Prah v Meratti; Laws v Florinplace |
Prah v Meratti: no right to a view! but the no right to light rule expressed in fontainebleau hasnt crystalized yet, judge says he sees possible arguments for it Laws v Florinplace: motion to restrain operation of a porn shop claiming it would offend residents thus interfering with enjoyment of property, and that it would attract undesirable clients. Court granted the injunction. (prof said that there was a pub on the corner,so it wasnt about living in a quiet residential place, it was about the type of people coming, and this must have brought it to “material annoyance”). Shows the level of nuance you need to sometimes get into with local standard in deciding whether there is nuisance. (London vs Torrington Alberta) |
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Can you get damages with an injunction?; How is privacy related to nuisance? |
- yep, any damages already suffered cannot be remedied by the injunction and thus you can get damages for them - even if you get an interim injunction while waiting or trial, it doesnt happen right away, and any loss or annoyance you suffer in the meantime, you can get damages for on top of the injunction; Privacy is an aspect of enjoyment for property, so very likely nuisance law can be used to protect privacy in cases like these |
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Shuttleworth v Vancouver General Hospital |
for Quia timet injunction for nuisance, reverse onus to show: a) Is the apprehension well founded? b) Is there proof of a real threat of danger? c) Is there a strong probability that this will become an actionable nuisance? - need evidence of imminent danger, can just bring a claim bc your sensibilities are offended
- D built an infectious diseases hospital on same street as their other hospital - P lives across the street and can see into what is happening in many of the rooms in the hospital - he fears he will hear children screaming, can see what is happening, and will get infections - P wants an quia timet injunction (one to restrain acts which are imminent but not yet actual) because he fears damages will occur Holding: case dismissed- no evidence of imminent danger |
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Shelfer v City of London Electrical Lighting Co |
Shelter Rule: “If injury to P legal right is small and is one which is capable of being estimated in money, and adequately compensated by a small money payment, and it would be oppressive to the defendant to grant an injunction, then damages in substitution for an injunction may be given" - it is impossible to say what constitutes a small, estimate-able injury, or what would be oppressive to the D. It will vary based on the circumstances, up to the judiciary to determine |
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Cases from notes re: nuisance and injunctions: Canada Paper Co v Brown; Black v Canadian Copper; KVP Co Ltd v McKie et al (Ontario); Stephens v Village of Richmond Hill |
Canada Paper Co v Brown: mill releasing noxious fumes, mill there before D but court said too bad mill is for good of town, injunction ordered Black v Canadian Copper Opposite decision to Brown- Nickel mine releasing fumes and ruining farms but the court said that nickel was so important that an injunction would not be granted, however ordered damages. KVP Co Ltd v McKie et al (Ontario): Pulp company polluted river. paper is necessary, yes but only legislation can take away P right to no nuisance- injunction given Stephens v Village of Richmond Hill: injunction given bc : a) P made prima facia case of nuisance b) only damages given only in special cases, usually injunction c) municipality had no statute allowing them to create such nuisance |
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Holmes on nuisance and public police |
Holmes believes public policy is about weighing values and doing what will benefit all of society.We must pay first attention to the particularity of the case, but overall the gain for allowing an act to be done must be compared to the loss that it creates. |
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Bamford v Turnley: |
- even an act performed for public benefit can constitute a nuisance - nothing is in the public interest unless it is so much more of a benefit to society that the value of the activity of the D is so beneficial that it can compensate the P. (It doesnt matter that a lot of people or more people like the bricks, the P has to be able to be compensated) - Dicta: sometimes injunctions stop creative or beneficial acts - Turnley burnt brick releasing noxious fumes, causing many neighbours to become ill. Issue: If an act is determined to be a reasonable use of one's property, but it causes a nuisance to neighbours, where does the balance lay – with the individual, or the public? - there will always be winners and losers and the losers should be compensated - Court says making bricks would ONLY be more valuable to the public good if your benefit is so high that you could afford to compensate the people who lose. We have no option here to make you pay damages though. Our only option is injunction no injunction, so they give injunction |
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How do you get damages for nuisance? |
you need a caes in which the injury to the plaintiff is small, monitizable, AND if we were to grant an injunction it would be devastating to D. Public benefit is usually a weak argument |
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Miller v Jackson |
Public interest should be considered in nuisance cases and weighed equitably Dicta: Denning says there was no nuisance here- he says must look at whether something is reasonable (ties in public interest and weighs benefits) = utilitarian logic
- Jackson owns a cricket pitch, Millers bough adjoining land to farm on , balls fly over - cricket pitch there for many years before Millers - Denning says no nuisance: culture, timing, number of player vs two millers. 2 other judges say there is a nuisance - majority decide that not serious enough for injunction so give damages |
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Sturges v Bridgman- mentioned for 5 secs |
For timing for nuisance, it matters when the nuisance becomes actionable, not when the annoying action itself starts, and it only became actionable when the doctor built the shed - P moved next door to a baker who had been there for many years - P set up a shed for private practice some time after he moved in, but the noise of the bakery was interrupting and he sought injunction Issue: does it matter that the noise was there for an extended period, but only became a nuisance now? - court says that the use of land prior to the construction of the consulting room was not preventable or actionable and therefore it was not capable of founding a prescription right. - court also examined the neighbourhood which was residential and said the noise would be a nuisance to a reasonable person wanting to use the land for residential purposes too |
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Profs very long side note on utilitarianism and torts... |
- judgements commonly balance utility and rights - Small annoyances will not fall under the materiality threshold -> this falls under “live and let live” rubric, idea that owners have equal right to use property as they like, as long as its under threshold. - Local standard element of nuisance law assists in preventing nuisance by letting prospective owner know if a particular area is appropriate for their uses. - Rights-based approach fights against aggregative approach of utilitarianism. Need to think about human interest involved and what rights are engaged. If someone’s rights are being affected beyond the materiality threshold, then it is a nuisance |
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Negligence Rule |
Plaintiff must establish: 1. That D violated the standard of care 2. That D owed him or her a duty of care; and 3. Then P must establish that the damage that was suffered was not too remote The three elements are tightly connected. How can you ask whether they did something wrong without thinking about the consequences of pushing and pulling people onto train? When looking at the careless act, we should be looking at the other people around and the consequence affecting them. However, they are at least quasi - conceptually independent and often two will be present and lawyers will fight over the third. All are necessary for negligence. |
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What is standard of care about |
It is not just about compensation, it is first about setting a standard, a guide for behaviour. It is about whether the action that lead to the harm should have occurred- did D do something that they ought not to have donw? |
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Palsgraf v Long Island Railway |
- guy with package runs to make a train jumps on while its moving - two guards attempt to assist him, and due to this his package slips from his arms - package contains fireworks, explodes, and causes a giant Scale on the platform to fall on Mrs P and injure her - famous intro to negligence case. - Court found that there was standard of care breached by guards, and they owed mrs P a duty of care, but that injury was too remote, too unforeseeable to constitute negligence |
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What does Holmes say about negligence and standard of care? |
- what Holmes says about negligence echoes what he says about nuisance- everything is about policy and we should set the rules based on what is best for society as a whole - Options for the standard of care; strict liability (responsible for any injury caused by a voluntary action, regardless of foreseeability “one acts at ones own peril"), subjective liability (D had to have foreseen the risk, chose to undertake risk), objective liability (reasonable person would have foreseen) - Strict liability theory construes all actions as a choice, but at some point we need to act, and action is good. The foreseeability of the consequences is important, and is what makes some actions choices and others not. *ignores freedom - Subjective liability doesnt give standards for acting bc it is so individual. *people would be allowed to do whatever they want as long as they believed it was the right thing to do Objective standard is in the middle of these two extremes |
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Vaughan v Menlove |
affirms test of reasonable person to be used in negligence (objective standard)
- D had hay rick which spontaneously caught on fire and burned down the P barns - P had discussed with the D the possibility of a fire and warned him - he claimed he didnt possess the highest order of intelligence - court said too bad, we must adhere to the standard of a man of ordinary prudence in the situation Holding: finding for P |
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Bucklet v Smith Transpoer Limited |
Mind so affected by illness that he was unable to understand nor discharge the duty of care truck driven by D came into intersection at high speed and rammed into the P. D pleaded that he suddenly became insane and imagined that the truck was out of his control. Doctors said he suffered from syphilis (he later died). An insane delusion, unconnected or not sufficiently connected with the inability to understand and discharge his duty, would not free an insane defendant from liability for negligence. The onus of proof in this connection was always on the party alleging it. The court found that, at the time of the collision, the employee’s mind was so affected by the disease that he neither understood nor was able to discharge the duty to take care. |
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Roberts v Ramsbotton |
-you can rebut a prima facia negligence case by showing that a sudden affliction has rendered you unconscious or otherwise wholly incapable of controlling actions - he retained some level of consciousness, still liable despite infliction D suffered stroke while driving and hit a bunch of people. He was judged on objective standard, not to be affected by the idiosynchasies of the person. The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retained some control, albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable. —>P entitled to recovery, D may have been acting somewhat impaired, but he was conscious enough that he is liable. There is no moral blame, but this is irrelevant. Finding for P |
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Mansfield v Weetabix |
Bood sugar causes accident, not liable - driver caused accidents bc blood sugar was low. He didnt know about the condition, but had been involved in 3 other similar incidents - court overruled Roberts and said he was not liable for damages resulting from the impaired degree of consciousness caused by his condition. - Prof thinks that this and Ramsbottom were dif cases, not as opposing deicsions as the textbook says |
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McHale v Watson |
An objective standard is applied to children but it is an objective child standard not an objective adult standard - there are two components to standard of care: foresight and Prudence - D threw a medal rod at a piece of wood and it rebounded and blinded P (they were young girls) Issue: Should children be assessed on adult standard of care? - it is not reasonable to expect children to understand/ expect the possible outcomes of decisions - they were acting as a normal 12 year old would and had no intention to injure - Watson lacked requisite foresight for liability due to youth. He also lacked prudence/attentiveness to the security of others |
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What is Posner's Hand Formula for determining liability? What is the criticism of it? |
If B < PL , then they are liable If B > PL, then not liable. B= burden/ cost of avoiding the accident P is the probability of the accident L is the injury/ damage done Problematic: not everything is monetizable and comparable (benefit of a monastery and quite to monks vs a logging company working in the area and cutting down trees and making noise) |
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Feminism and torts? (Bender's comment on Posners theory) |
- it should not be a comparison of B vs PL and should be a threshold that if PL is above then it's negligence no matter what B is -we should all just take more care (that is…there should just be a higher threshold in general) - this isnt particularly feminist... |
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Bolton v Stone |
it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it. - Miss Stone was injured when she was struck by a cricket ball outside her home. She brought an action against the cricket club in nuisance and negligence. -The cricket field was surrounded by a 7 foot fence. - neighbours said getting hit by a ball was super unlikely It was obviously foreseeable the ball would go over (balls had before) But better question: Did they respond with a level of prudence proportional to the level of risk? - A breach of duty has taken place if Plaintiff shows that Defendant failed to take reasonable care to prevent the accident. In this case, a reasonable man would not have felt himself called upon either to abandon the use of the ground for cricket or to increase the height of his surrounding fences. In this case, the reasonable man would have done nothing. |
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2 components of standard of care |
Cognitive/foreseeability: Would the reasonable person have foreseen this? Moral/prudence/risk assessment: Would the reasonable person have done something about this? |
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Tomlinson v Congleton Borough Council |
P hit his head swimming in a park owned by D and sued for negligence. Court found for D, saying, we must not assess just the likelihood that someone may be injured and the seriousness of the injury, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. |
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Custom: Trimarco v Klien; Ter Neuzen v Korn |
la violation d'un norme n'est pass assez pour constituter l'omission coupable - P was injured when his glass shower door, in the apartment he rented from Klien, shattered- At the time of trial, installing shatterproof glass was a recognized custom/ standard - but at time of installation it met standards - when proof of an established practice is accompanied by evidence the D conformed to it, this will show due care - maid bien que la coutume peut etre utile en évaluant s’il y a l’omission coupable, ce n’est pas décisif - Selon la cour, la coutume peut etre utilise en deux facons: a) pour plaider que tu as pris toutes les mesures nécessaires b) pour plaider que le défendeur n’a pas pris toutes les mesures ncessaires, et ne se conformait pas à la coutume; In scientific cases, living up to the customs of a profession is enough to eliminate liability for negligence, you just need to act in a way reasonable for the time period - P became infected with HIV as a result of participation in D artificial insemination and was not warned of the risk- no screening test was available for HIV until after she finished the program, and D was not aware HIV could be transmitted until then |
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Fontaine v British Colombia |
Res Ipsa Loquitur applies when: 1. The thing that inflicted the damage was under the sole control of the defendant(or of someone for whom he is responsible/whom he has a right to control) 2. The occurrence is such that it would not have happened without negligence 3. There must be no evidence as to why/how the occurrence took place!! if there is ANY evidence then using this doctrine is inappropriate Main finding Res ipsa loquitur is no longer good law – circumstantial evidence will be treated as supporting a reasonable inference if it convinces the trier of fact on a balance of probabilities. |
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Res Ipsa Loquitur |
Negligence may be proved by circumstantial evidence. One type of circumstantial evidence surrounding which there has been lots of different opinions is Res Ipsa Loquitur, or the idea that the occurrence of an accident implies negligence |
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Winterbottom v Wright |
if the D conduct was originally something that she undertook as a result of a contract, you can owe a duty only to those in a privity of contract with you. --> bad law never cite it!! - Defendant contracted with the Postmaster General to keep the coaches in a safe and secure condition. - Plaintiff, a coach driver, was driving a coach serviced by Defendant and was hurt when a latent defect caused the coach to break down, throwing him to the ground and injuring him. - - they denied the action in tort because the P didnt have a good claim in contracts P argument: Premise 1) the D breached contract Premise 2) that breach caused my injury Conclusion: therefore I should be able to recover— this doesnt follow, its not valid Courts argument: Premise 1) D owen duty in contract Premise 2) contract duties owed only to parties Premise 3) P not a party to contract Conclusion: no duty of any kind owed to P— this is also not valid |
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Donoghue v Stevenson |
Torts and Contracts are separate and parallel- lack of contract does not mean lack of tort claim! You owe a duty to people who can be reasonable seen as being affected by your actions- Foreseeability + proximate cause -P and friend were out at a cafe, and friend ordered P a drink, which ended up having snail in it- P was in severe shock and had stomach pain - the cafe bought the bottle of a supplier who bought off Stevenson - a duty of care is not owed to the world at large but it is to your “neighbours” which are the people you can reasonably foresee as being affected by your actions - manufactures have to take reasonable care to ensure their products are safe for consumption - a lack of contract doesnt mean there is no duty - they werent bound by Winterbottom because this wasnt about breach of contract |
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What are MacMillens and Atkins arguments in Donoghue v Stevenson? |
- MacMillens : just because a contract is in the picture doesnt mean it supersedes tort. Tort and Contract are parallel and independent. Also, we need to look at each case and each relationship and ask, what would the reasonable person say about a duty here (holes on board more than overarching principle) - Atkins: basically right now we list all the types of relationships where there are duties, and yes most of these have contractual duties too, but what about for ex. joint users of the highway- there is no contract but there is duty. We should be finding an underlying principle that links all the duty relationships "Who, then, in law is my neighbour? The answer seems to be 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"** |
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Foreseeability and Proximate Cause |
Proximate causation is how closely linked your relationship is to the victim. Foreseeability is whether the injury to that person is foreseeability They are very related, and depend on one another quite often |
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What methodologies does the prof list still at play in cases today for looking at duty of care? |
Passive Pigeon hole: BuckMaster (dissent in Donoghue) Pragmatic Pigeon hole (McMillan) Purveyor of Principles (Atkinson (Atkins?)) —> foresight fancier vs proximity purveyor (both substantive approaches) |
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Andrews (dissent in Palsgraf) vs Cardozo (Wagner) |
Andrews: negligence is in the air- if youre negligent for one thing then you are liable for anything in the chain of causation Cardozo: reasonable foreseeability- you are only liable for that which is foreseeable from your negligent action There is only a contest between foreseeability and proximate cause in places where they dont overlap. And where/if they overlap will change over time and between judges/courts |
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Rescuers |
- FIX THISSSSS how do the courts view them in terms of foreseeability vs causation |
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Haynes v Harwood (CHECK) |
Liable for injuries to rescuers who step in during even if duty of care not owed - Harwood’s servant parked his horses by a store, and while he was inside, some kids angered the horses who ran onto the street - Police officer Haynes tried to stop them and got injured in the process Issue: When someone knowingly puts himself or herself in danger to protect others, is the negligent party liable for damages suffered in the protection effort? - dont have to show that this particular incident was probable, just that the accident is of a class of things that might be anticipated -The doctrine of the assumption of risk does not apply where the plaintiff has, under exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk Holding: finding for P |
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Wagner v International Railway; Urbanski |
Wagner v International Railway: injury to the rescuer- the wrongdoer is liable even if he didnt foresee the rescuer coming and getting hurt, because of proximate cause Urbanski v Patel: Surgeon removed mistakenly the patients only kidney. The victims father offered his own, but the transplant was unsuccessful. The father wants compensation for the loss of giving up his own kidney. The court held that the fathers actions were a consequence of the disaster that befell her because of the D and that it was entirely foreseeable that a member of the family would donate an organ to help. (talked about this) - judge doesnt treat the father as a domino, just says its completely foreseeable that a family member would do this |
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Dobson v Dobson |
Piggybacking argument is "slippery slope" Negative exception to the general rule of foreseeability to protect pregnant women - Cynthia Dobson was a pregnant woman. -While in the 27th week of pregnancy she was driving her car when her negligent actions caused a car accident. The foetus was permanently injured, and was born prematurely that day. - Her son, Ryan Dobson, suffered physical and mental injuries, including cerebral palsy. His grandfather launched a tort claim for damages against his mother. Issue: should a mother be liable for pre-natal negligence causing damage? McLauclin: - fetus would be piggybacking their claim on the back of another person owed a duty, this is slippery slope - on the one hand, we have a general rule about fetuses from cases like Duval v Seguin, and on the other, we have general rules protecting pregnant mothers - would violate pregnant womens rights to equality to be liable for something 24 7 Holding: dismissed Dissent: she already had a duty of care to everyone on the road, extending this to the fetus would not change the reasonable standard of care. |
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Duval v Seguin |
defendant held liable years later for injuring a boy while he was still in his mothers womb - fetuses have protection as "persons" if they dont get born alive though no one can claim on their behalf. |
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Bradford v Kanellos |
Liable for what is forseeable as a result of YOUR actions - Draws on Polemis to criticize the Palsgraf approach - First in a long line of novel fact situations where courts decide whether to just apply old doctrines or to change/modify them - Pulls together standard of care from Bolton and WM2, withDuty of care as announced in Donoghue, andRemoteness test (as left off in WM#1 before these cases)
- P were at a restaurant owned by D- there was a fire, which was put out with a fire extinguisher and no one was hurt - but the extinguisher made a noise and someone yelled gas leak theres going to be an explosion- in the chaos, the P were hurt - the negligent act by the restaurant was allowing grease to build up and a fire to start - they however had a fire extinguisher and used it, taking reasonable measures of care - what caused the chaos was the negligent shouting that there was gas by the patron - the chaos that ensued could not have been foreseen from the build- up of gas by the P Holding: finding for D - So can we maybe conclude the court is thinking if the intervention itself is not foreseeable, may lead to conclusion that standard of care was not violated, no negligence. Dissent: Says that panic was foreseeable from fire/gas stoveEveryone including the restaurant workers was panicked |
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Home Office v Dorset Yacht Co Ltd |
Liability is not necessarily negated simply because a third party performed the act that caused damage as a result of the initial negligent act; if this action was a foreseeably outcome of the initial act then the original negligent party will be responsible for the outcome of the third party’s actions - prison boys aged 15-20 were working on a yacht or something like that - les officiers les ont laisser faire leur travail et allaient s’endormir - 7 garçons ont échappé sur un bateau, en faisant bcp de dommages. Cela incluait du dommage à l’entreprise du plaignant (Dorset Yacht) - Home Office is the prison, they are appealing here - This is so obviously negligent … it is all very foreseeable …but the judges are quite hesitant about how to deal with this Holding: finding for P |
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Lamb v London Borough of Camden (Novus Actus Intervenus |
Reasonable foreseeability of damages is not enough in itself to justify awarding damages; courts must consider the public policy implications, or discover a more stringent standard to ensure that damage awards are logical. Also, you should go thorugh - Lamb owned a house, moved out to America and rented it - during that time, the Borough workers accidentally struck a water main causing serious damage to the house- the tenant left, and squatters moved in and ruined the house- Lamb sues Borough for the damages - Although this is a foreseeable outcome of the water main breakage using Lord Reid's test, saying it extends too far....Must limit liability at some point. - Sometimes by limiting range of persons to whom duty is owedSometimes by saying break in chain of causationOther times, done by saying consequence is too remote to be a head of damage. POLICY ultimately decides - Says damages should not be assessed for public policy reasons - The insurance should be the provider of funds not the courts - this is a sh*t argument and having insurance is not a reason for not imposing liability Holding: finding for D |
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Describe Novus Actus Interveniens [NAI] Cases |
Distinctive characteristic of these cases: defendant performs an act (or creates conditions)allowing another person to cause the plaintiff’s injury; that “third party” is the direct cause of the plaintiff’s injury, but defendant’s behaviour is also a factual cause basic framework so far for analyzing negligence cases consists of three elements:
• Standard of Care: Did defendant do something that created a substantial risk of harm? •Duty of Care: Was the plaintiff a foreseeable victim?If not, is there good reason to make an exception? (positive pigeonhole e.g. rescuers) or,even if foreseeable, is there good reason to make an exception and deny duty owed? (negative pigeonhole e.g. Dobson) •Remoteness: Was the type of injury or perhaps the mechanism causing it foreseeable?if not, is there good reason for an exception? (e.g. thin skulls, Wagon Mound #2 principle) Even if foreseeable, is there good reason to make an exception and treat the causal chain as 'broken'? |
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Describe the precedential circumstances of NAI |
--> NAI cases test the wisdom of Viscount Simonds' dictum in Wagon Mound #1 that foreseeability is the 'effective test' for remoteness - if the results are foreseeable, Viscount Simonds thought, the defendant should be held liable even if indirectly produced -->But just as post WM#1 courts almost immediately reaffirmed the thin skull doctrine even though it does not easily fit within the foreseeability test (liability imposed even though the injury was not foreseeable,) they also almost immediately reasserted the conviction that the intervention of a third party could be foreseeable and yet 'break the causal chain' between defendant's negligence and plaintiff's injury so as to relieve the defendant of responsibility. -->But whereas the exception in favour of thin-skulled plaintiffs is (almost?) categorical, the NAI cases are more equivocal: sometimes the intervention short-circuits liability, sometimes it does not. Three major moves to watch for in the cases: Tinkering with existing standard, or duty, or remoteness rules as seems appropriate by ratcheting up the normal requirements (hyper-foreseeability) Tinkering with existing elements by adding something to foreseeability to justify imposing liability (foreseeability plus) Creating a negative pigeonhole - a categorical liability - excluding exception to the usual rules; usually framed as a 'no duty owed' rule. |
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Analogize the judges opinions in Dorset Yacht and Donoghue. How are the two cases different? |
Neighbour principle good enough in D&S, what about Dorset? 2 ways cases are different: - Actual damage was done by a third party. - Two neighbour relationships here - with prisoners and with yacht owners Why does the second difference matter to Diplock?Probably that the Home Office, in thinking about how to design a correctional facility for low risk offenders, has to take into account rigour or security so that it doesn't conflict with effective rehabilitation. |
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Describe the judges reasonings in Dorset Yacht |
Reid (MAJORITY): - Officers had a duty to control borstal boys, who were all criminals, foreseeable that they would touch the boats/try to escape - Pigeon hole categories are less of a thing now - we have to examine other duties/situations and see if they are similar, see if recognized principles apply to them - He raises the bar for how foreseeability on intervening acts: should apply the principle of 'natural and probably cause' the intervention is very likely to happen - Reid's 'very likely' test would extend liability much further to include a longer chain of causation. Diplock (REUME LIKES) : - Identify relevant common characteristics between relationships/conduct in the present case and past cases. - if a relevant detail is missing, then it becomes a policy decision - Only impose a duty on those directly and immediately affected, and it stops there. - Has to be a duty between the prevention person and the person likely to be harmed. - He makes duty work by saying, they were on an island, so obviously escape would have happened on a boat Dilhorne (Dissent): Judicial law making. Bad.Says majority's application of Atkin's test is way too broad an imposition of liability. All sorts of damage is foreseeable from escape.Leave it to parliament. |
