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Negligence (I) intro to duty of care + Breach of duty - Coggle Diagram
Negligence (I) intro to duty of care + Breach of duty
negligence: Introduction
much broader
DAMAGE is a crucial part
goal of negligence - target carelessness
Elements
Duty of Care
D owed DoC to C
Fault/breach of DoC
D failed to meet standard of conduct by law
what is a standard? e.g. child?
Damage
need to establish
causal
relations
Causation
a
casual
connection b/ D's careless conduct and harm suffered by C
e.g.
Barnett v Chelsea and Kensington Hospital Management Committee
: outcome the same
Remoteness/Foreseeability
not liable for ALL consequences of their wrongdoing
causation in law
anything breaking chain?
McKew v Holland
: worker injured, go down staris - unreasonable conduct breaking chain
extent of damage dont need foreseeable but the type must be
Tremain v Pike
: rats, weil disease, D couldnt have foresee
A new configuration in
Meadows
?
D advising negligently (e.g. doctor)
C suffered unrelated loss
where should this sit? usually remoteness
different structure?
is it actionable in negligence?
scope of duty
did D breach duty
factual causation
duty nexus
legal responsibility
USELESS
Duty of care
Donoghue v Stevenson
when there is duty and someone fail that duty
Lord Atkin's neighbor principle:
active care for foreseeable damage to neighbor --> who are closely and directly affected by my act
duty owed to ppl who can reasonably foresee will be affected by ur act
function: control the development of tort of negligence
judges can refuse to hear cases when no duty
limit the scope and breadth of liability
a remedy aside from contract
can be used even w no preexisting relationships
court recognize the possibility of DoC without looking at specific facts
e.g. doctor owed DoC, easily determined
question of law rather than facts
even w DoC can still fail at breach or causation
justifications
against: other jurisdiction do well without this
in favor: if not for these D can just do whatever
sometime
s confused w breach
Haley v London Electricity Board
Core case: direct physical injury
where there is physical injury of C by D's
positive
act = DoC
*Robinson
v Chief Constable of West Yorkshire*
"established category" of DoC
More problematic areas
Pure economic loss
Pure psychiatric harm
Harm caused
indirectly
omission or failure to act
DoC very rare cases
Tindall
: black ice, police leave the scene, didnt warn ppl, C's husband die
correct order: 1) duty 2)breach 3) causation 4) remoteness
Breach of Duty
Definition
Falling below standard of care required
the
standard
= that of
reasonable
person doing same activity
Objective test
does NOT generally take into account
D's personal characteristics
Nettleship v Weston
: D fell below standard of reasonably competent driver
Rationale
prioritize reasonable expectation by C
certainty
put
reasonable
person in same position as D
categorization of activity
Reasonable person in D's position
categorization
of activity important in deciding
standard
jeweller ear piercing different from doctor
e.g. reasonable car driver
representing oneself as having particular skills
would be held to higher standard
Other people's carelessness
Upson v London Passenger Transport Board
when
experiences
show that such carelessness is common
Childhood
standard of a reasonable child this age
Mullin v Richards
whether
15 yrs old reasonable
girl would realize
rationale: child immature, not like adult
ONLY applies when child engage in
activity that children are expected to do
e.g. if kid drive car and hit ppl, adult activity, standard = reasonable adult driver
do not apply to old ppl: have more experiences
Sudden physical disability
If D suddenly unwill, NOT unreasonable
Mansfield v Weetabix
correct standard is that of reasonably competent driver UNAWARE that he has this condition would have done
Roberts v Ramsbottom
D liable cuz he continued to drive after suffering stroke, hit another car
doctrine of prior fault
: D liable cuz of what she did earlier
Mental disorder
Dunnage v Randall
Liable, cuz D has
control
over his body action
ONLY when D is in mental incapacity to eliminate any fault
Emergency
standard = reasonable person acting in emergency
Ng Chun Pui v Lee Chuen Tat
reasonable person acting in heat of moment, minor judgement errors are
excused
Sport
Caldwell v Maguire
D NOT liable, fast moving contest,
no liability for judgement error or lapses
Czernuszka v King
Rugby, D tackled C, D liable - too unconventional
Informal play
same as sports,
physical activity w tacitly agreed conventions
Blake v Galloway
impliedly
agreed
, "no expectation that skill or judgement would be exercised"
How much care?
Size of the risk
higher the chance of risk --> greater the care
Bolton v Stone
hit by cricket ball, likelihood too small - no liability
Miller v Jackson
the greater the size of risk the more expected u are to take precaution
cricket ball hit 8 times a season
the severity of the harm
more serious the harm --> greater degree of care
Paris v Stepney BC
one eyed man got hit by chip, D (employer) liable, should have provide safe equipment
risk is greater, more serious
Known vulnerability
of victim
if C has vulnerability that increase size/gravity of risk =
vulnerability taken into account if D knows/should know abt it
Haley v LEB
C fell into D's trench
D liable, it is perceivable that blind person walk by
the cost of taking a precaution
financial cost/inconvenience
considered when deciding reasonable level of care
Latimer v AEC
D's factory's floor slippery, C injured, say D should close factory
dont have to go extreme length
Lack of resources
Actual resources available to D NOT relevant
when assessing reasonable care
e.g. D argue no money to fix brake, hit ppl --> shouldnt have drive in the 1st place
exception
: occupier of land
affirmative duty to prevent hazard causing harm to others
taking into owner's resources
Utility of D's conduct
Daborn v Bath Tramways
D's ambulance used during war time, driver can't give usual hand signal, C injured
national emergency
, use all available vehicles - standard of care lower
"the purpose to be served, if sufficiently important, justifies the assumption of abnormal risk"
Watt v Hertfordshire
fireman injured when rescuing, D (fire authority) NOT liable
Rescuer treated sympathetically
Ward v London CC
: driver of fire engine ignore spotlight, collide w C's car
rescuer can still be in duty of care
has to obey traffic rules
Utility of being able to take risk in life
Tomlinson v Congleton BC
C dive into lake, hit head, sued D OLA 1984
D not liable
Social benefit of scenary
utility in preserving person's freedom
How is cost-benefit analysis carried out?
English law use
common sense
no single determinative factor
Hindsight bias
Roe v Minister of Health
anaesthetic contaminated by invisible cracks in glass ampoule
NOT liable, not known in 1950s that its possible
Statutes
Compensation Act 2006
in practice does not make much difference
Social Action, Responsibility and Heroism Act 2015
symbolistic function, makes no changes to the law
Common Practice
usually if D comply w common practice when doing particular activity = D has taken reasonable care
BUT may still be breach
D fail to adopt common practice = evidence for carelessness
Professional breach DoC
Bolam
Principle
C argued D should give relaxant drug
firm body of medical opinion
against use of that drug
D NOT liable
The "test" : D not in breach, since action supported by responsible body
if 2 views both supported by responsibly body, D NOT liable if it choose 1 of 2
small group of specialist can also form responsible opinion (quality not quantity)
applied to all professionals
experts are better suited than court to make decision
Bolitho
principle
used
Bolam
but ultimately court is decision maker,
will decide whether expert has said is justified
Montgomery
Principle
D (doctor) did not inform C of risk
Decision of not informing was
Bolam
compliant
BUT court said
Bolam
does NOT apply
D should have inform C and discuss alternative option
doctor under DoC to ensure patient aware of
material risk
Test of materiality
: whether a reasonable person in the patient's position would attach significance to that risk
Scope of duty
limited to discuss
reasonable alternative treatment
(decided by
Bolam
)
McCulloch v Forth Valley Health Board
dont want doctor bombarded patients with ALL possible treatment
Two stages
what
risk
associated w procedure
should have been known to the doctor
falls within expertise, use
Bolam
were the risk material?
use
Montgomery
for the court to decide
whether reasonable patient would want to know abt a treatment
Test of materiality:
if doctor knew patient attach significant risk, BREACH if not disclose that info
patient express concern
potential consequence of treatment
potential benefit
potential alternative treatment
Burden of proof on C
WORK ENDS HERE