Tort-Negligence:Duty & Care & Breach of Duty

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Jennifer Looby

"The elements of Negligence" : Define Negligence.

A breach of legal duty to take care which results in damage to the claimant. -Rogers, W.V.H.(2002)

"The elements of Negligence" :Name the 4 Components of Negligence.

1.) The Claimant was owed a duty of care
2.) There was a breach of that duty of care.
3.) The claimant suffered damage as a result of that breach ( Causation)
4.) The damage suffered was not too Remote.

"The legal duty of care": What is the legal duty of care?

The relationship between def & Claimant, where the def has an obligation to take proper care to avoid causing injury to claimant.

"The elements of Negligence" : Caparo Industries Plc v. Dickman (1990) HL

Concerning: Duty of Care

Legal Principle: 3 points court must consider to establish duty of care:
1.Reasonable foresight of harm
2. Sufficient proximity of relationship
3. That it is fair , just, & reasonable to impose a duty

"The Neighbour Principle": was formulated in what case & by who?

Formulated by Lord Atkin in Donoghue v. Stevenson (1932) HL.

"Established Duty Situations": Name 5 established duty situations.

1.Employer to employee
2.Consumer to manufacturer- Donoghue v. Stevenson (1932) HL
3. Doctor to Patient
4. One road User to another
5. Solicitor to Client - Moy v. Pettman Smith (a firm)(2005)

"Liability for failing to act- Exceptions": Name four exceptions for failing to act.

1.) Prison Officers & Prisoners-
Home Office v.Dorset Yacht Co Ltd. (1970) AC (HL)

2.)Employer to Employee-
Hudson v. Ridge Manufacturing Co. (1957) QB

3.) Occupier & Visitor-
Occupiers Liability Act

4.) Parent & Child
-Carmarthenshire County Council v.Lewis (1955) AC (HL)

"Liability for failing to act- Exceptions": What is a liability for failing to act?

A duty to act positively if special relationship or relationships or control between parties.

"Special Protection": What is special protection?

Protects certain defendants from liability in negligence.

"Special Protection- Unborn Child": What is the key case in this area?

Burton v. Islington Health Authority (1993)
- Duty of care owed to unborn child which becomes actionable at birth

"Special Protection- Unborn Child": is only applicable to persons born prior to?

22 July 1976- when the Congenital Disabilities (Civil Liability) Act 1976 came into force.

"Special Protection- Unborn Child": What is the Congenital Disabilities (Civil Liability) Act 1976 ?

-Gives a right of action to a child who is born alive & disabled from a disability which affected the mother during pregnancy.

- extends to preconception tort, where the mother is harmed prior to concieving & the harm suffered affects the health of the baby at birth.

"Special Protection- Police": is there a general duty owed by the police?

No general duty of care owed by the police.

HillV. Chief Constable of West Yoskshire (1989)-
duty of police is to the public not individual.

"Special Protection-Fire Service": is there a general duty owed by the fire service?

Capital and Counties Plc v. Hampshire County Council (1997)-duty to public not individual

"Special Protection-Coast Guard": is there a general duty owed by the coast guard?

OLL Ltd v. Secretary of State for Transport (1997)
-duty to public not individual

"Special Protection-ambulance services": is there a general duty owed by the ambulance services?

Kent v.Griffiths, Roberts and London Ambulance Service (1999)
no general duty to respond to a call

"Special Protection-public authorites":is there a general duty owed by thepublic authories?

X (Minors) v. Bedfordshire County Council (1995)
-action would fail if carrying out delegated power

D.V.Bury Metropolitan Borough Council (2006)

"Breach of Duty":Breach of duty establishes what?

whether the defendant is breach of that duty.

"Standard of Care": Was defined in what case?

Blyth v. Birmingham Waterworks (1856)

"Standard of Care- the reasonable person": the cconduct will be measured against what?

Conduct of the defendant will be measured against that of a reasonable man.

Hall v. Brooklands Auto-Racing Club (1933) (CA)
-described persona as "the man in the street".

-applies objective test-

"Special Standards of Care": define.

situations where courts apply a different standard of care from that of a reasonable person

"Skilled or professional defendants":

Bolam v. Friern Hospital Management Committee (1957)

standard= reasonable person w/same skill or expertise.

Approved in Sideaway v.Bethlem Royal & Maudsey Hospital Governors (1985).

"Skilled or professional defendants": House of Lords clarified the situation in the Bolam Test in what case?

Bolitho v. City & Hackney Health Authority (1998)

"Unskilled Defendants": what allowance is made for unskilled defendants?

No allowance is made for the inexperience.

Nettleship v.Weston (1972)- unexperience driver

Wilsher v.Essex Area Health Authoirty (1987)- Junior Doctors

"Children":

Mullin v. Richards (1998)- standard of care of same age

Gorley v. Codd (1967)-older children judged against standand of adult

"Sporting Event":

Woolridge v. Sumner(1963)-Owed a lower standard of care than general standard.

Harrison v.Vincent (1982)- test extended to fellow competitors

Smoldon v. Whitworth and Nolan (1997)- referees owe a duty of care to participants

Magnitude of Risk-Likelihood of Injury": risk is determined by the likelihood of it occuring & the seriousness of the potential injury

Bolton v. Stone (1951)
Miller v. Jackson (1977)

Haley v.London Electricity Board (1965)

Magnitude of Risk- Seriousness of inury": Def knows that aspecific individual is at risk of suffering.

Paris v.Stepney Borough COuncil (1951)

"Cost & Practicability of precautions": measures that the def could have taken to avoid the risk of injury

Latimer v.AEC Ltd(1953)

"Social Value":Def's behavious is in the public interest

Daborn v.Bath Tramways Motor Co Ltd. (1946)

"What would have a reasonable person have forseen?":

Harris v. Perry (2009)

"Proving Breach of Duty":established on the balance of probabilites.Claimant must prove.

...

"Proving Breach of duty- Res Ispa loquitor(the thing speaks for itself)":

Scott v. London & St. Katherine Docks Co (1865)

"Proving Breach of duty- Res Ispa loquitor(the thing speaks for itself)-Control": must be within the control of defendant

Easson v. LNER (1944)

"Proving Breach of duty- Res Ispa loquitor(the thing speaks for itself)-Case unknown": facts do not speak for themselves

Barkway v.. South Wales Transport (1950)

"Proving Breach of duty-Civil evidence Act 1968" - Section 11

if def has been convicted of s criminal offence- taken as proff that the def did not commit it in any associated civil proceedings unless contrary proved.

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