Mind Map by raulblacktower, updated more than 1 year ago
Created by raulblacktower about 6 years ago


Mind Map on DELICT: NEGLIGENCE, created by raulblacktower on 12/15/2013.

Resource summary

1 1) Duty of care
1.1 *Foreseeability > Bourhill v Young 1942 *Proximity > Donoghue v Stevenson1932 *Fair, just and reasonable > Mitchell v Glasgow City Council 2009
1.1.1 1) Pure economic Loss "Loss to the pursuer which is does not arise from physical damage to property or injury. E.G= loss of profit, loss of gain, expenditure. *Unintentional (negligently caused economic loss) is recoverable since the 1960s (Hedley-Byrne) HL Hedley- Byrne v Heller [1964] = HB Asked for credit reference from their Bank regarding an advertising comp– (Upon receiving positive financial info, advertising orders were made) But Advert. company went bust. Wanted to sue the bank, but there was an express disclaimer in bank approval HELD= Because of express disclaimer, the bank could not be liable. But important announcements on “duty of care” (in obiter dicta) “negligent representation” can give rise to duty in where there has been pure economic loss. ** This case recorded high authority with subsequent cases like (Esso Petroleum v Mardon) (ii) Negligent provision of services (White v Jones [1995]) (Junior Books v Veitchi 1982) White v Jones [1995] Solicitor was asked to prepare a will, but negligently failed to do so before the testator died. Two claimants who were to benefit under the will sued in negligence. Held: On the question of whether the solicitor D owed the beneficiaries a duty of care, there was no clear precedent. The majority of the House agreed that the beneficiaries should succeed. D lost **Caparo v Dickman [1990] UKHL** C Bought shares in fidelity company (accounts were misleading. Action brought against the auditors (Argued they were careless, and overvalue the company) HELD: case was unsuccessful but (important for negligent misrepresentation and economic loss) Lord Bridge asked (whether is ‘fair just and reasonable’) Test: pursuer must establish* (proximity, foreseeability, fair just and reasonable) (Hedley Byrne v Heller) (Spart Steel v Martin) (Murphy v Brentwood) (White v Jones) (i) Negligent misrepresentation East Lothian AA v Haddington 1980= Fishing in river Tyde – pollution of river Held- could not sue the council (property belonging to another) ‘fishing permits’ not enough- No Duty of care *Spartan Steel v Martin [1973] Facts: Defendants were employed working on road – during works they cut an electricity cable – affecting a nearby factory Factory which suffered a Power shut and lost 400 pounds. Held = Claimant could recover money (foreseeable financial damage, derived from damage to their property) But could not recover category (1700 pounds) category of profits where there was no ‘property damage’ *Murphy v Brentwood DC [1991] = Plaintiff bought a new house (that had several structural problems) Council had approved the defective plans. Plaintiff did not have funds to repair the house – House was sold for a £35.000 loss. Court agreed that this amounted to serious economic loss (assets worth less) (POST CAPARO) Court considered whether money could be repaid from Council – House of Lords “expressly overruled” Anns v Merton *Held – law of contract better be used here- No reason to extend liability further under the law of Tort Court sought no reason, why individuals should bypass the role and assurances of builder as part of contracts per Lord Bridge (p 475) + Pure Economic loss does not have to be justified i.e. damage to property/ unnecessary expenditure) per Lord Oliver Defective buildings *Dynamco v Holland 1971 =Power cable cut – affected residents nearby, but no major damage Held- could not recover (i) Damage to property not belonging to the pursuer -- Courts reluctant to recognise duty to economic loss
1.1.2 2) Psychiatric Harm (Alcock v Chief Constable) (White v Chief Constable) Page v Smith) ***b=(McLoughlin v O’Brian) (Roberston v Forth Road Bridge Board) (Barber v Somerset) *Alcock v Chief Constable [1992] Hillsborough disaster= too many fans allowed into the ground, due to negligence on the part of the police) Those affected were watching the game on tv (passive and unwilling witnesses would be secondary victims) law imposes a duty in relation to physical harm, but also to psychiatric harm *White v Chief Constable of S Yorks [1999] Police officers suffering for “trauma” following Hillsborough disaster (complex claim that would result in controversy) Chadwick was considered and was “distinguished” – In this case HELD- Only people in close connection can be regarded as “primary victim” – policemen not immediate risk of physical harm (Chadwick was however)!! *Page v Smith [1996] Car collision – plaintiff argued he suffered from a condition that arose from the accident HL= held Plaintiff could recover, because other driver could have foreseen that negligent driving would result in some form of harm *Alcock HELD:(If the relationship is established, it could apply to a ‘fiancée’ = BUT siblings Not to be regarded as “close enough”) colleagues and friends Not close enough a) Primary Victims Victims who have been put in range of physical danger but who suffer only psychiatric harm. Duty of care is generally recognised. b) Secondary Victims McLoughlin v O’Brian [1983] Car collision = Wife found out in hospital that one of her children had died, and her husband was waiting for treatment (Proved disturbing) “two hours after the accident” – Resulted in long term psychiatric damage Held: by HL ‘duty of care’ could be owed by the driver of the vehicle to those ‘directly affected by negligence’ – Lord Rotherford, “external events on the mind” can have detrimental effects -- >Positive psychiatric illness” = there was enough proximity, to include (Mrs McLoughlin) within the range of duty (she was there soon after the accident, and had contact with the victims) Close tie of love and affection Robertson v Forth Road Bridge Joint Board 1995 Woker lifted with metal sheet from truck over bridge and died)“proximity question? HELD= work colleague NOT CLOSE ENOUGH Must meet “Alcock criteria” Barber v Somerset [2004] C was a teacher – working almost 71 hours a week (he told his employer he suffered from overwork; certified by GP Took time out-then went back. Lost it and grabbed a pupil (later left the school) Could he claim damages for psychiatric harm? YES= assessment made reference to “conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know” (Lord Walker at para 65) Cross v Highland and Islands Enterprise 2001= Family sought damages, following Suicide of victim- (two months before death, he attended a meeting with stress advisor) committed Sui two months after returning to work HELD= Employers not liable – Court not satisfied that stress was due to work (relatives could not prove causal connection) *Important factor Defendants did not know about “severity” of stress (they are entitled to assume the employee can cope) Alcock: 1. Close tie of love and affection to primary victim 2. Witness the event with their own unaided senses 3. Proximity to the event or its immediate aftermath 4. The psychiatric injury must be caused by a shocking event
1.1.3 4) Duty of Care and Omissions *Gibson v Strathclyde Police 1999 Duty of care recognised. Heavy rain cause a bridge over river Kelvin to collapse. Police officers left their lights-on one end, but left no warning on other. Victims in a car drove off bridge (some had suffered physical and psychiatric harm) Held: Lord Hamilton, saw that there was (foreseeability, proximity) – police officers had assumed responsibility of the hazard (fair and just). *Sweeny case: only in exceptional circumstances are the police bound Osman v UK (2000) There should be no blanket immunity – victim had to have their day in court (victim had to have a fair hearing) Duty can only be established to the courts satisfaction *** Police are not entirely absolved *Burnett v Grampian Fire and Rescue Service 2007 =Firemen are under a duty not to make situation worse, but also to put out the fire. Kent v Griffiths [2001] Time for ambulance to get there (lady miscarried her baby) If ambulance had attended earlier then she might have been better HELD= ambulance service could owe a duty of care Distinguished from the police (ambulances) have a higher expectation of a duty of care iv) Duty to prevent harm by third parties *Dorset Yacht v Home Office [1970] Young offenders left unsupervised. Seven of them escaped and stole a boat which collided with a Yacht. The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage. It was foreseeable that harm would result from their inaction. Horsley v McLaren (The Ogopogo) [1972] No duty = Defendant Invited guests to cruise – one passenger fell – another tried to save him (he died of shock and hypothermia). Relatives sued the boat owner HELD: No general duty to rescue others in common law • Boat owner under duty to do their best for a passenger who goes overboard, but this is not an obligation to undertake the best rescue method available. Barrett v MOD [1995] MOD was liable= Serviceman got drunk and was left in his room to recover. He asphyxiated in his own vomit Held= People are under no duty (since the drinking was self-caused) But the stage when they started looking after him, then ‘once you have assumed responsibility’ then you come under duty *Maloco & Smith v Littlewoods 1987 (HL) >>Leading Scottish cases: Regal cinema in Dumferline closed (1976) building sold to littelwoods to be converted into supermarket. Conversion would take time, so building left unused > Area for mischief ‘local teenagers’-Building burnt down (malocco sued Littlewoods) HELD: Pursuer not able to prove, that owners knew about local kids. (NO DUTY OF CARE) (maybe under the law of nuisance, you can’t put your property in a way that affects your neighbour) There should be no liability for the action of third parties “except in exceptional circumstances” Lord Mackay, said it came down to “foreseeability” DUTY TO RESCUE AMBULANCE FIRE BRIGADE Van Colle v Chief Constable Hertfordshire Police [2008] HL *Conjoined cases (Van Colle, jr) was to stand on theft trial. He was threatened by the accused in the case. Police did not provide him with protection, despite known threats -VC was shot dead. ***Mr.Smith reported that former partner had harassed him, but police ignored it -- Mr.Smith was subsequently assaulted HELD:(Van Colle) Bar is high, where there is clear threat of murder- NO liability --Mr.Smith case brought under the law of negligence No liability There must be exceptional circumstances. Lord Hope “a robust approach is needed” POLICE (Gibson v Strathclyde) (Osman v UK) (Burnett v Grampian Fire) (Kent v Griffiths) (Dorset Yacht v Home Office) (Maloco v Littlewoods) (Horsley v McLaren: The Ogopogo)
1.1.4 3) Public Authorities (X v Bedfordshire CC) (Connor v Surrey) (Stovin v Wise) (Anns v Merton) (Mitchel v Glasgow CC) Obstacles to duty of care with a Public Authority (a) Policy arguments (b) statutory framework (c) policy matters & 'operational matters' (d) Human Rights (a) Policy arguments X v Bedforshire CC [1995] Local authorities failed in their duties to children, under the Childcare Act (local authority brought to court) Held: Not fair to impose a duty on (Council) – Lord Brown justified action in the ambit of statutory discretion – distinguished between “policy type decisions” and “operational types decisions” (..see Z v United Kingdom (2002) Connor v Surrey [2010] Former head teacher sued Surrey CC for negligence over her depression. CA upheld that Council should have taken steps to protect her mental health. This was a pre-existing private law duty of care. Upheld damages for £390.000 *Stovin v Wise [1996] Collision with motorbike (C) sued council because of obstruction on blind junction – [Highways Act] gave the authority a discretion to order ‘obstructions’ to be removed Held= this could distort the manner in which local authorities spend their resources. (c) operational matters Murphy v Brentwood 1991 HL - Expressly overruled Anns v Merton: regarding Council liability to tenants over building work (d) Human Rights *Mitchell v Glasgow CC 2009 (HL) Problem tenant in social housing – his behaviour had been extremely anti-social i.e. making threats to neighbours. Meeting to warn him of possible ‘eviction’ .He later murders next door neighbour. Family of victim bring case forward- argument of a ‘duty to warn’ (Proximity, foreseeability) Held= Not fair just and reasonable, to put liability on the landlords.Idea that landlord acts as guarantors to prevent ‘violence’ from their tenants – is far too broad (potentially widened duty of care too far “open ended”) >> (Dorset Yacht case) was Distinguished here, because there - the authorities did have a duty to look after the minors and their behaviour (b) Statutory framework
1.1.5 2) Psychiatric Harm
2 2) Standard of Care
2.1 Standard of care required of the defender in the circumstances of the case
2.2 A.Voluntary behaviour? (Waugh v James Allan) (Mansfield v Weetabix) B. Standard of Care (Muir v Glasgow Corporation) (Roe v Ministry of H) C. Particular cases (Bolitho v Hackney HA)
2.3 Mansfield v Weetabix [1997]NO breach when D drove his lorry into a shop . At the time of the incident the defendant was in a hyperglycaemic state. He was unaware of this. Held: The defendant was not in breach of duty -Standard of care was that expected of a reasonably competent driver unaware that he is suffering from a condition that impairs his ability to drive."
2.3.1 (Waugh v James Allan) Lorry driver suffered a gastric attack. Once he felt better, he drove on. In fact he had thrombosis and shortly after he died at the wheel. The lorry swerved and seriously injured a pedestrian. Held: No breach of duty in this case. Medical evidence revealed the driver had no reason to anticipate the thrombosis and had therefore acted reasonably in driving the lorry after feeling better. The act was involuntary and there was therefore no breach of the duty of care. If, however, the driver had known of condition, then the act of driving while unfit would have been a voluntary act that amounted to a breach of duty. A. Preliminary question. VOLUNTARY BEHAVIOUR?
2.4 Muir v Glasgow Corpn. [Leading case] Church group had a Sunday picnic in King's Park, Glasgow. When it began to rain. Mrs Alexander, invited party inside her tea room. Access to the tea room was through a narrow passage where children were queuing for sweets. Two members of the party carried a tea-urn of boiling water dropped it, scalded several children. HL held no breach of duty Mrs Alexander was entitled to assume that the tea-urn would be carried by responsible persons and that if carried with reasonable care would cause no harm to the children. A reasonable person in her position would not have foreseen as a possibility, let alone a probability, that the urn would slip***** Muir v Glasgow ***authority that before a breach of a duty of care can arise the defender's conduct must be a reasonable and probable consequence of the act. The test is objective (reasonable foresight of the Reasonable Person)
2.4.1 McHale v Watson [1966] Aus case = two young children playing tag. Watson12 years old threw a sharpened metal rod that bounced off and hits McHale in the eye causing permanent blindness. Should children be assessed as adults on standard of care? HELD: NO, Watson acting as a normal 12 year old boy would, and cannot be expected to have the perceptions of risk of an adult . The act was not done intentionally, and a "reasonable" 12 year old boy would not expect that outcome. **Mullin v Richards [1998] The standard of care of a 15 year old girl was judged by the standard of a reasonable 15 year old. Sword fighting with rulers, one girl is injured in the eye when the plastic ruler breaks. Bolitho v Hackney HA [1998] No Duty- Applying Bolam test regarding failed intubation of deceased child C. Particular cases
2.4.2 B. Standard of Care Before there is a breach of a duty of care, harm to the pursuer must be a reasonable and probable consequence of the acts or omissions of the defender.
3 3) Causation
3.1.1 "BUT FOR TEST" = But for the defender's wronful conduct, the harm would not have occurred Barnett v Chelsea & Kensington Hospital [1969] Mr Barnett went to hospital complaining of severe stomach pains. Doctor ordered for him to go home and contact his GP in the morning. Mr Barnett died five hours later from ARESENIC Poisoning. Even if doctor had examined Mr Barnett, he couldn't have saved him. Held: The hospital was not liable as doctor's failure to examine the patient did not cause his death. 'But For' the omission of the doctor, the patient would have still died. "Material contribution" TEST Wardlaw v Bonnington Castings [1956] C sought damages for repiratory disease from silica dust particles inhaled at work. Two sources: A pneumatic hammer and swing grinders. *Bonnington were liable only in respect of dust from the grinders. HL held that both sources had contributed to contraction of the disease. But Lord Reid held “difficult, which was the most probable source was for the disease. Held: On the balance of probabilities, dust from the grinders had materially contributed to the injury, thus causation had been established. "Material increase in risk" TEST McGhee v National Coal Board [1973] Held: a material increase in the risk of injury was equivalent to material contribution to damage.. An employee contracted dermatitis from brick dust at work. This caused minor abrasions of the skin; the only way of avoiding the problem was by washing. There were no adequate washing facilities at the workplace and the employee was unable to wash until he went home. HELD= McGhee could recover because the defendant’s failure to provide facilities materially increased the risk of the condition.That was sufficient to prove causation. Multiple sources of harm and multiple wrongdoers Fairchild v Glenhaven Funeral Services Ltd [2003] Employees developed mesothelioma from asbestos dust while at work, but there was uncertainty as to which of several employers was responsible for the exposure that caused the disease. HL HELD where there had been exposure by different employers but the precise causative point could not be identified, it was sufficient to find that each employer had materially increased the risk of contracting the disease.*HL explicitly accepted that the above exception arises by virtue of “a strong policy argument in favour of compensating those who suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm".The test applied in these cases is less stringent.
3.2.1 Significance attributed to a factual cause (causa causans: causing cause) **OR Further conduct? Novus actus interveniens that breaks the chain Corr v IBC Vehicles Ltd [2008] HL =C suffered an accident at work 5 years earlier. This triggered feelings of depression (finally threw himself of a multi-story car park). It was found his depression was a direct cause of his injury. Employer liable for damages Grant v Sun Shipping 1948 SC. Ship in dock being unloaded. A ship labourer (pursuer) fell through a hatch door left open. (1) Repairers left the door open (2) crew did not check (3) the labourer was no careful. Held 75% blame for repairers – 25% Anderson v St Andrew’s Ambulance Association 1942 SC (Two drivers at fault in causing collision in which passenger was injured. Liability split 50/50.) Crash at a junction (both drivers of bus and the ambulance were liable) Phee v Gordon 2013 SLT (Golfer injured in the eye by stray golf ball. Golfer who hit the shot 20% liable; golf club 80% liable in view of hazardous lay-out of course.)
3.3 C. RES IPSA LOQUITOR: case speaks for itselt
3.3.1 Scott v St Katherine Docks Co (1865) Bag of sugar fell on passer by. Court held that bags don’t fall for no reason, the court held the warehouse owners were liable) *McDyer v Celtic Football Club 2000= Lump of wood fell on pursuer. Celtic FC admitted they had control over premises. They accepted bits of wood don’t normally fall. HELD= Court accepted that there was an inference of fault that could not be rebutted thus the doctrine of RES IPSA LOQUITUR stood. Damages awarded £85.000 McQueen v The Glasgow Garden Festival 1995 Pursuer attended a Glasgow firework display. She was injured by flying shrapnel – Tried to use under res ipsa loquitur – **But court Held, numerous reasons could have caused this (competing explanations) could not bring the res ipsa loquitur into play.
4 4) Remoteness
4.1 Overseas Tankship v Morts Dock (Wagon Mound) Defenders spilt oil into the harbour. When the oil spill occurred, operations were stopped. Operators of the wharf assured him that he could restart work again involving welding. Later some cotton fabric caught fire, and the whole area light up. (It was thought that oil and water do not ignite) = Held- foresight of the reasonable man, can alone determine foreseeability >> damage was too remote.
4.1.1 Blaikie v BTC 1961 = not a probable consequence of negligence that someone would die of a heart attack *Hughes v Lord Advocate 1963= 8 year old playing with a friend. BT was working on cables which were on the ground. One Saturday workers went for a tea break – they left holes unmanned but had covered them and left 4 paraffin lights around the whole. 8-year-old pursuer Hughes- pushed one of the lamps, which resulted in an explosion, the boy falls and suffers injuries. Question, was this injury reasonably foreseeable? Held = foreseeable that the paraffin lamps might explode or draw attention, this could reasonably have been foreseen. Robinson v Post Office [1974] = Injury to leg worsened due to injection (but this was regarded as a standard procedure ‘anti-tetanus’ . Defender does not escape liability "thin skull rule" Harm must be foreseeable
4.1.2 Foreseeability Test
5.1.1 Seat belt cases ** Pace v Cully 1992 SLT (Police had advised local taxi drivers not to wear belts in case of passengers attacking them) Was this contributory negligence? Held:Could not be said this was unreasonable – but contributory negligence was rejected Children and contributory negligence ***Harvey v Cairns 1989 (Six year old stepped into the path of vehicle travelling at 30 mph. Child was killed. Court held= child should have developed enough awareness that stepping off the kerb was not a good decision. (Damages reduced by two-thirds) Galbraith’s Curator v Stewart (No 2) 1998 SLT (Eight year old injured while playing on pipes left in street overnight. No contributory negligence. Child did not have capacity to recognise risk involved.) Court applied test of= a reasonable child of that age, and what he would be attuned to.
5.2.1 Titchener v British Railways Board 1984 (HL) (Fifteen year old crossing railway line should have known she might get hit by a train.) Girl had trespassed with a boy, to enter a shed in the property of British Railways. She said they failed in their duty of care HELD= Obvious hazard, no need to show this. In court (said she took her chance) held: A person who takes a chance necessarily consents to take what comes.” Reeves v Commissioner of Police [2000] Victim had been on (suicide watch) –But managed to hang himself in cell. Police tried to invoke the defence of (Volenti injuria) and (contributory negligence) = Court dismissed the first, but said there could be 50/50 contributory negligence. (Pursuer was out to kill himself, and harm himself) Failed to take concern for his safety *** Police argued (Volenti) HELD= No- police had an specific duty to protect the man from a deliberate act of “suicide” – thus would be illogical to exempt them from liability
5.3.1 Taylor v Leslie 1998 (Passenger allowed himself to be driven by under-age, uninsured driver – conduct not particularly reprehensible in community (Orkney).) Driver of the car was 16 (not qualified to drive) he wasn’t wearing a seat belt. Illegality defence could not be applied given the crime HELD = This was not serious criminal activity, and the parents of the victims were not barred from seeking damages- but they were reduced 50% due to contributory negligence. Revill v Newbery [1996] (Newbery’s allotment repeatedly vandalised. Newbery fired shotgun during attempted burglary. Burglar injured. Burglar awarded damages, but reduced by 2/3 for contributory negligence. (despite contributory negligence, still had to pay 4000 pounds) Vandalising an allotment is bad, but it doesn’t merit getting shot.
5.4.1 Prescription (Scots law) = obligation to make reparation disappears (5 year prescriptive period) Morrison:Gael Home Interiors v ICL Plastics 2013 SLT Explosion – defendants prosecuted under health and safety. Pursuer raised the action in July 2009 (original explosion was in may 2004) Held: by the time there was a criminal prosecution, they were aware the accident had happened due to some neglect or fault. The explosion was caused by the defendants default.
Show full summary Hide full summary


Reducing the Impact of Earthquakes
B1 Biology
Emily Needham
Plant Structure and Photosynthesis
Evangeline Taylor
Metallic bonding
THE HEART labelled
IT - The Online World
Animal Farm- The Pigs
Chemistry C1
Phoebe Drew
FV modules 1-4 infinitives- ENTER ENGLISH
Pamela Dentler
regular preterite tense conjugation -ar verbs
Pamela Dentler