Flashcards
Law 04 Flashcards
Cards in this deck (19)
- 1Normal Negligence Q) Explain the elements of duty of care?DOC originally established in the case of Donoghue v Stevenson, but modern day 3 part test comes from Caparo v Dickman
1) Reasonably Foreseeable - In this case it is reasonably foreseeable that (C) could be injured if (D) is careless because “……………” (Kent v Griffiths)
2) Legal Proximity - In this case there is proximity between (C) and (D) as they are physically close in time and space because “…………..” and there is legal proximity as (D) should have (C) in contemplation when he/she was “…………...” (King v Phillips).
3) Just, Fair & Reasonable - In this case it is just, fair and reasonable to impose a duty of care on (D) as they do not work in the public sector emergency services and there are no policy considerations not to impose a duty of care on them (Hill v Chief Constable of West Yorkshire). - 2Normal Negligence Q) Explain the elements of breach of duty?We use the BOLAM test, did (C) fall below the standard of a reasonable “………………” From the case of Nettleship v Weston, it is clear that trainees are judged against the standard of a competent/qualified person carrying out that particular skill (apply if D is a trainee or recently qualified). From Wells v Cooper, it is clear that when D is carrying out an everyday task, he will be judged against the competent reasonable person carrying out that task. The courts will consider three risk factors when trying to establish whether (D) has fallen below the standard of a reasonable “………………” *The Degree of Risk (likelihood) – In this case the degree of risk is high/low because “…………………………” (Bolton v Stone) *The Seriousness of the Risk – In this case the seriousness of the risk is high/low because “…………………………” (Paris v Stepney B.C.) *The Practicality (Cost) of Taking Precautions – In this case the practicality/cost of taking precautions is high/low because “……………………” (Latimer v AEC)
- 3Normal Negligence Q) Explain the elements of resulting damage?It must be proven that the damage was direct result of D’s actions and that the damage was foreseeable ¬ too remote).
In this case the damage was/was not direct as ‘but for’ (D) “…………………” (C) would/would not have suffered injury or harm (Barnett v Chelsea Hospital).
In this case the damage was reasonably foreseeable and not too remote as when (D) “……………………” it was reasonably foreseeable that (C) could suffer “………………..” (The Wagon Mound). OR In this case the damage was not reasonably foreseeable and was therefore too remote as when (D) “………………………” it was not reasonably foreseeable that (C) could suffer “……………………” (The Wagon Wound). In addition, the Thin Skull Rule may apply whereby (D) must take his victim as he finds him. Therefore the fact that (C) suffers with “…………………” does not mean that the damage caused to him/her is unforeseeable. Therefore (D) will remain liable (Smith v Leech Brain & Co/Hughes v Lord Advocate).
- 4Defences Q) Explain the defences for all negligence?Consent (Law) – this is a defence that applies when C knows that there is a risk of D acting in a negligent way and freely consents to that risk. If consent is successfully pleaded by D its effect is to act as a complete defence. (Morris v Murray)
Contributory Negligence - this is a principle which allows the court to apportion blame between the two parties. Contributory negligence was introduced by the Law Reform (Contributory Negligence) Act 1945. (Froom v Butcher)
- 5Defences Q) Explain the remedy for all negligence?main remedy for a successful negligence claim is simply damages. Damages are compensation in the form of money to compensate C for their loss. Generally, damages are awarded for loss to property; damages for personal injury (pain, suffering & loss of amenity) and/or future loss of earnings. The damages can be given in a lump sum or a structured settlement.
- 6Vicarious Liability Q) Explain the principle of Vicarious Liability?Shifts the blame from the employee to employer, but still remain jointly liable.
1) Is D an Employee or Independent Contractor? Employers are liable for employees not independent contractors *Control Test - Controls performance of employee (Walker v Crystal Palace FC) *Integration Test - Integral part of firm *Economic Reality Test - Payment, tax.
2) Acting in course of employment? *Traditional Approach - salmond text used traditionally by courts. i) D will be 'acting in the course of their employment' if act authorised by employer ii) D will be 'acting in the course of their employment' if an authorised act is carried out in unauthorised manner (Limpus v London GOC) iii) D not be 'acting in the course of their employment if carrying out something not entitled to do "frolic of their own" (Hilton v Thomas Burton) *Modern Approach - Lister & Hesley Hall, needs to be sufficient connection between employment & torts comitted
- 7Q) Explain the principle of Psychiatric Injury? (Introduction)?Introduction - *Nervous shock is a novel duty situation within tort of negligence, *for a successful claim it must be proven D was negligent (DOC can be established as it was/wasn't reasonably foreseeable D's carelessness would cause C harm... (Caparo v Dickman). The defendant has/hasn't breached their duty as have/haven't fallen below standard of a reasonably competent... (Bolam) Breach did/didn't cause the resulting damage... (The Wagon Mound) *In this case the damage is nervous shock, rules have developed over the years in certain circumstances claims for psych injury *Primary Victim - Those 'injured or at risk of reasonably foreseeable harm & suffer psych injury (Page v Smith) *Secondary Victim - Those 'not injured or at risk of foreseeable injury but suffer psych harm from what they have witnessed (McLoughlin v O'Brian & Alcock)
- 8Q) Explain the principle of Psychiatric Injury? (If C Primary Victim)?Can claim if they can show - *D was negligent through 3 elements *The claimant was 'injured or at risk of reasonably foreseeable harm' *The claimant suffer a recognised psychiatric injury in line with World Health Organisation guidelines.
- 9Q) Explain the principle of Psychiatric Injury (If C Secondary Victim)?Can claim if can show - *D was negligent through 3 elements of negligence *Satisfy 3 part criteria in Alcock v Chief Constable of SY Police 1) Proximate in time & space - that they were present at the scene or immediate aftermath (McLoughlin) immediate aftermath included up to one hour later where bodies not cleared up 2) Close emotional tie of love & affection to primary victim - (Alcock) Husband/Wife & Parent/Child would automatically have a close emotional relationship. All other relationships are judged on a case by case basis, 3) Witnessed the event through their own unaided senses - sight, hearing & touch cant be someone explaining incident or seeing incident on TV (Alcock) *C suffering a recognised Psychiatric Condition in line with World Health Organisation guidelines *Condition caused by a sudden shocking event rather than gradual shock "assault on their sense" (North Glamorgan NHS Trust v Walters)
- 10Q) Explain Rescuers in Psychiatric Injury?Voluntary Rescuers - Can always claim as primary victims as they are putting themselves at risk to rescue others (BRB v Chadwick)
Professional Rescuers - Cannot claim as primary victims as part of job, exception is if they are a genuine secondary victim (Greatorex v Greatorex)
- 11Q) Explain Pure Economic Loss? (Introduction)1) Identify Economic Loss & how rules have developed over the years
2) General rule is that you cannot recover pure economic loss, unless there are two circumstances - a) Consequence of a negligent act (Murphy v Brentwood District Council) b) Consequence of a negligent misstatement (Hedley Bryne v Heller)
3) In the case the economic loss is pure economic loss due to the negligent misstatement... (Hedley Byrne v Heller) & therefor not consequential economic loss as there was no physical loss... (Spartan Steel v Martin)
- 12Q) Explain Pure Economic Loss? (Duty + Relationship, Breach & Resulting Damage)In order to see whether D owes V a duty of care we look at the rules from Caparo v Dickman, in this case it was reasonably foreseeable D's carelessness would cause V harm... (Caparo v Dickman).
Additionally, there must be a special relationship between D & C in order to see whether D owed a duty. A number of criteria exist, three from Hedley Bryne v Heller & two from Caparo v Dickman
a) D must possess a special skill (Mutual Life v Evatt)
b) C must rely on this to their detriment (Yianni v Edwin Evans)
c) The reliance must be reasonable (McNaughton Paper Group v Hicks)
d) Advice must be made known to the advisor (Caparo v Dickman)
e) If advice passed onto a person ulitimately relying on it, this must be made known to D at time advice given (Caparo v Dickman) Breach & Resulting Damage (Brief) + Conclusion
- 13Q) Explain the Introduction to Occupiers Liability?*Occupiers Liability is a statutory form of negligence *Occupiers Liability Act 1957 relates to lawful visitors S.2(1) they can have express permission (express invited there) or implied permission *Occupiers Liability Act 1958 relates unlawful visitors S.1(1) a e.g. Trespasser *Then Occupier is anyone deemed to have 'Sufficient control of the premises' (Wheat v Lacon) *Premises S.1 (3) (A) OLA 1957 'any fixed or moveable structure' *s.1 (2) OLA 1984 states that “occupier” & “premises” have the same meaning as they do under the OLA 1957.
- 14Q) Explain the Lawful Visitors Section to Occupiers Liability?- S.2 (1) states that all lawful visitors are owed a duty of care
- Duty of care is defined as to 'ensure the visitor is reasonably safe for the purpose which he is invited onto the premises'
- Depending on the type of visitor you are, shows a different level of DOC owed 1) Adult Visitors S.2 (2) Cunningham v Reading FC 2) Child Visitors S.2 (3) a Glasgow Corp v Taylor 3) Skilled Visitors S.2 (3) b (Roles v Nathan)
- Breach of Duty, when occupier 'does not ensure visitor is reasonably safe for the purpose which invited onto premises' i.e fallen below the standard of a reasonable occupier (Bolam)
- Independent Contractors, Occupier can escape liability if damage caused is due to the negligence of contractor, as long as occupier took reasonable steps to ensure Contractor is not a cowboy & not of overly complex work (Haseldine v CA Daw & Sons)
- Resulting Damage, Lawful visitors can claim for personal injury, damage to property & possessions.
- 15Q) Explain the Unlawful Visitors Section to Occupiers Liability?- S. 2 (1) a states that people other than lawful visitors are owed a doc,Trespasser is defined as a person who enters without invitation or presence is unknown by the occupier but if known objected in a practical fashion Lawful visitors can become trespassers if they 'exceed the powers for which they are permitted to be on premises' (Geary v Wetherspoon)
- In order for a duty to be owed they have to satisfy 2 preliminary hurdles
a) S.1 (1) Dangerous State of The Premises, not dangerous activities of claimant (Keown v Coventry NHS trust)
b) Three provisions under S.1 (3) 1) Occupier knows or aware danger exists (Subjective) 2) Occupier aware trespasser in the vicinity (Subjective) (Swain v Natui Ram Puri) 3) Danger is one occupier should offer protection from (Objective) (Tomlinson v Congleton B.C.)
S.1 (4) states that a duty is 'to take such care as is reasonable in all the circumstances to ensure trespasser does not suffer injury whilst on premises' courts use many risk factors e.g. degree of risk, age of trespasser (Tomlinson v Congleton B.C.)
S.1 (8) Resulting Damage
- 16Q) Explain Introduction Private Nuisance?An unlawful interference with a person's use or enjoyment of land, in connection with it or some right over (Winfield). In this case X is claimant because they have a propriety interest since having an equitable title or legal interest because... (Hunter v Canary Wharf). In this case X is defendant since he created nuisance when... (Tetley v Chitty). There are three parts 1) Unlawful use of land b) Indirect Interference c) Claimants use & enjoyment of land
- 17Q) Explain 'Unlawful use of Land' element in Private Nuisance?The courts use many risk factors when deciding whether the use of land was unlawful
1) Continuity = Continuous State of Events (Bolton v Stone
2) Time of Day = Day/Night
3) Locality = (Sturges v Bridgman) LJ Theisger "what would be a nuisance in Belgrave Square wouldn't be in Bermondsey"
4) Malice = Malicious Intent (Christie v Davey)
5) Human Rights = S.8 Human Rights Act, right to private family life (Marcic v Thames Water)
6) Recreational Activities = (Hunter v Canary Wharf)
7) Sensitivity of Claimant = Reasonable man i.e. objective test (Robinson v Kilvert)
8) Public Benefit = Balanced in interest of the public (Miller v Jackson)
- 18Q) Explain 'Indirect Interference' element in Private Nuisance?There needs to be a indirect interference that affects the enjoyment or use of claimants land
- 19Q) Explain 'Claimants use or enjoyment of land' element in Private Nuisance?There needs to damage done towards the claimant as a result of D's nuisance, there are two types of damage;
1) Actual (Quantifiable) (St Helens Smelting v Tipping)
2) Intangible (Unquantifiable) - Inconvenience/Discomfort (Hunter v Canary Wharf)
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- A level [A-Level] Law Flashcards on Law 04 Flashcards, created by Kieran Deaville on 03/12/2016.
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- Kieran Deaville · Dec 2016
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- Mar 8, 2017
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