Tort notes

Negligence 

Duty of care:

·     Statutory duty - created by act parliament e.g. failure stop accident under Road Traffic Act 1988. 

·     Contractual duty - Pittwood, level crossing guard failed shut gates killed. 

·     Duty because of relationship - Gibbins and Proctor,starved child death father duty as a parent. 

·     Duty undertaken voluntarily - Stone + Dobinson,sister moved in died anorexia, guilty manslaughter assumed duty care when moved in. 

·     Duty through one’s official position - Dytham,police officer watched man beaten, did nothing did not report it. 

·     Set in motion chain events - Miller,set fire mattress squat + did nothing, guilty arson. 

·     Duty of doctors - Bland,Hillsborough victim, persistent vegetative state doctors allowed to stop treatment if in patient’s best interest. 

·     Neighbour principle - Donoghue v Stevenson-  Courts decide who owed a duty of care.

·     Caparo test - Proximity three-part test. Caparo v Dickman. 

1). Was damage reasonably foreseeable? 

2). Is there proximity between the claimant + respondent? 

3). Is it fair just and reasonable to impose the duty? 

R was an accountant who did the accounts for a company making it look as though it was in profit. Actually it wasn’t. The claimant then took over the business believing it was a good business. They then sued the respondent when they found out it wasn’t. They found in favour of the respondent. 

Proximity physical and relationship. 

·     Kent v Griffiths- Ambulance got lost + failed to attend the claimant who was suffering from an asthma attack, he consequently suffered a repertory arrest. 

·     Bourhill v Young - Motorbike accident pregnant women went around corner to see what was happening. Unable to sue as made herself by physically closer. 

·     Mcloughlin v O’Brien - Victims family member went to visit them in hospital + they were in a very bad accident suffered shock depression + personality change. Respondent did owe duty of care to claimant. 

·     Hill v Chief Constable West Yorkshire Police - Last Yorkshire ripper victim. Police had enough evidence but failed make arrest. Mother claimed police owed duty of care. Held relationship between police + victim not close enough. 

Breach:

·     Did the R act as a ‘reasonable person’ would have done in that situation? Objective test exceptions: 

·     Professional - Bolam v FBHMC, C suffering depression + he went for ECT. The doctors didn’t give him muscle relaxants + he suffered a broken pelvis. One body of research said he should have been given them + one body said he shouldn’t. No breach not liable. Does the R actions fall below the standard of a competent professional? Is there a body of research to support their actions? 

·     Learners to be judged as a ‘competent person’- Nettleship v Westonlearner driver breached duty of care despite only being a learner, negligent. 

·     Children +…