Flashcards
TORT 2
Flashcards do conjunto (11)
- 1BACKGROUND "without any damage there is no tort"- based on idea that person owes a duty of care to another individual
- the breach of this duty may give rise to liability - 2A LEGAL DUTY OF CARE - DEFINITIONcare should be taken to ensure a person isn't exposed to "liability in an indeterminate amount for an indeterminate time to an indeterminate class"
(Cardozo C.J. in Ultramares Corporation v Touche [1931] 174 N.E. 441) - 3WINTERBOTTOM v WRIGHT (1842) 10 M & W 109 pre 1932, there was no general concept of duty of care.facts - defendant was contracted to keep coaches safe & secure.
claimant drove a coach serviced by defendant.
a latent defect caused the bus to break down, throwing claimant to ground & causing injury.
- 4general principle - the law used to intervene in isolated circumstances on a case by case basis where an individual owed duties if contractually agreed. ratio - there must be privity between parties to an action in order for it to be maintained.application - in absence of contract there didn't appear to be course of action against anyone.
if you throw a stapler out a window, injuring a man & causing harm. by the above authority, there is no claim. - 5THE NEIGHBOUR TEST the first test applied in order to assess the presence of a duty of care.general principle - judges started moving towards the formulation of a general principle of duty of care.
Heaven v Pender [1883] 11 QBD - 6facts - D supplied a ship with ropes. C was painting ship when ropes fell, causing injury. Dock owner sued for defective ropes.ratio - whenever 1 person is placed in a position that everyone of ordinary sense would recognise the necessity to use ordinary care/skill to avoid danger to someone, that duty arises.
application - D failed DOC to give attention to ropes & was held liable for negligence.
- 7DONOGHUE V STEVENSON [1932] AC 562 landmark case of negligence in tort law.- DOC on foreseeability & reasonableness
- claimants needs to show harm suffered derived from defendant's breach of duty
- must be reasonably foreseeable a failure to take reasonable care in respect of duty owed will cause damage - 8ratio - neighbour's principle test: " you must love your neighbour. take reasonable care to avoid omissions you can reasonably foresee likely to injure your neighbour" -lord aitkinneighbour - "closely & directly affected by my act ought reasonably to have in contemplation" -lord atikin
application - manufacturer owed duty of care to ultimate consumer. absence of contract between parties did not exclude the presence of DOC against manufacturer. - 9HEDLEY BYRNE & CO. LTD V HELLER AND PARTNERS [1963] AC 465 development of DOC stemming from neighbour testfacts - C used D to credit check a potential business partner.
D deemed the candidate as trustworthy so C proceeded with a deal.
subsequently, C lost £17k as the organisation went into liquidation.![HEDLEY BYRNE & CO. LTD V HELLER AND PARTNERS [1963] AC 465 development of DOC stemming from neighbour test](https://examtimeassets.s3.amazonaws.com/uploads/media/image/22548242/desktop_a31322ad-1e36-41a7-81fd-bb1c21581c5b.png)
- 10ratio - person may be liable for negligent misstatement if specific conditions are met. (special relationship of trust & confidence • voluntary assumptions of responsibility in relationship to given advice • reasonable reliance on the advice by the injured party)application - notwithstanding all specific conditions were met, the court nevertheless held D not liable for negligent misstatement thanks to a disclaimers that worked as exclusionary cause of liability.
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