Negligence, some Defences, PH, Public body liability, Occupiers Liability
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- Created by: Sasha O'Leary
- Created on: 25-01-20 21:33
Moorcock and Frost.
Moorcock- mother of crash victim can claim. Frost- Police can claim.
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Universal approach to duty of care
Donoghue v Stevenson neighbour principle
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What does breach concern?
What the standard of care is for D and whether they fell below it.
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Case for learner drivers having same standard of care (SOC)
Nettleship v Weston
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Case for SHO having the same SOC for the basic skill of patient history taking. Also shows tort is concerned with the task at hand and fulfilling the post you're filling rather than D's experience/skill level.
FB v Rana 2017
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Case with the mountain climbing expert who only used one ice screw.
Woodroffe Hedley v Cuthbertson
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Case where the reasonable man's expected actions depended on what would have been in contemplation in D's particular situation. (tea urn)
Glasgow Corp v Muir 1943
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Four factors that can be taken into account when deciding what the reasonable man would do. With cases.
Risk (Bolton v Stone) Seriousness of harm (Paris v Stepney BC) Cost (Latimer v AEC) Social Utility (Watts v Hertfordshire)
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Learned Hand Test
US v Caroll Towing
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Case where man did not breach bc he was unconscious in hyperglyceamic state
Mansfield v Weetabix
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What does s1 of the Compensation Act do?
Tells the courts to have regard to whether imposing duty for D to take particular steps to meet standard of care would prevent a desirable activity from being undertaken.
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Case showing standard of care in medical negligence will be determined by whether relevant body of professionals would have done the same.
Bolam v Friern Barnet Hospital Management Committee
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What case was this extended in? What's an example of the extension precedent in action?
Bolitho v Hackney Health Authority. Montgomery v Lankarshore Health Board (preggo women not told risks bc they didn't want them all to opt for cesearians)
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Factual Causation- Case for the but for test.
Barnet v Chealsea and Kensignton Hospital (Arsenic poisoning, would have died even if treated immediately.)
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Case where FC is satisfied if D made material contribution to harm.
Bonnington Castings v Wardlaw
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Case with mixed treatment where FC is satisfied if D caused an increase in risk of harm
McGhee v National Coal Board
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Case where the harm was not cumulative and the causes were unconnected. Why was FC not satisfied?
Wilsher v Essex Area Health Authority. No proof that the breach was part of the cause or made any material increase in risk.
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Joint liability case where harm was not necessarily cumulative and it couldn't be proven which employer caused the harm. What was the outcome?
Fairchild v Glenhaven Funerals. C can sue multiple defendants as having contributed to the harm.
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Proportionate liability case where some contributory cause was non tortious. What was the outcome?
Barker v Corus. D was only liable for their share.
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Act that reverses Barker v Corus for mesothelioma cases only.
Compensation Act 2006 s3
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Example of that act in action. Facts?
Sienhewicz v Gerif. Got mesothelioma partly from walking through factory with asbestos in it for work and partly from asbestos in general atmosphere.
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Case where all the causes were linked so D was liable for all harm. Facts?
Williams v Bermuda Hospital. Missed appendicitis. Big delays. Sepsis. Heart attack.
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Lost chance case.
Gregg v Scott.
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What are supervening events? Case? Facts?
Events that happen after D caused the harm which lessen the effect of that harm. Baker v Willoughby. D caused stiff leg, later amputated after someone else shot him. D still liable for stiff leg for rest of life.
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Superveneing events by natural causes case?
Jobling v Associated Dairies. D only liable for the bad back he caused up until the point when C got a medical condition which gave him a bad back anyway.
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One more factual causation case.
Cars v Abraham. D not liable to pay to repaint car that needed repainting from an older crash anyway.
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Legal Causation!- novus actus interveniens.
Has the chain of causation been broken?
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Easy novus actus example. (although it is rare in RTA cases)
Knightley v Johns. (D caused crash. Police sent motorcyclists down to drive against traffic flow. Motorcyclists hit. D not liable for that.)
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Harsh case where intervening act was by the claimant. Facts?
McKew v Holland and Hannen. Went downstairs on stiff leg and broke ankle. D not liable for broken ankle. Weirdly harsh bc why not call it contributory negligence?
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Case where C's act was not a novus actus?
Corr v IPC vehicles. (Suicide)
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Case where D was liable but also able to seek compensation from another person who also caused the harm. (So not a novus actus.)
Rose v Squires. Lorry 3 only liable for 75% in the end.
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Case where damage was too remote because the type of harm (fire) was not foreseeable.
Wagon Mound no1
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Case where damage was not too remote because although the cause was not foreseeable (explosion), the damage (burns) was. What caused the burns?
Hughes v Lord Advocate. Parafen lamp.
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Case where harm was not foreseeable. What was that harm?
Termain v Pike. Disease from rat urine. Rat bites were foreseeable.
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Case for the thin skull rule.
Smith v Leech Brain
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Case where sensitisation could be classed as harm
Dryden v Johnson Mathey
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Case where development of an antibody was not harm
Grieves v Everard and Sons
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Another strict case about the definition of harm
Rothwell
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Case where asymptomatic reduced lung capacity was harm
Cartledge v Jopling and Sons
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Defences- What act governs contributory negligence?
Law Reform (Contributory Negligence) Act 1945
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Successful contributory negligence defence
Jones v Livox. C rides on tow bar of lorry despite instructions not to. Injured when vehicle is hit.
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Seat belt case and precedent
Froom v Butcher 1975!! (year important bc seatbelts not legal requirement) Precedent: Lack of seatbelt had no effect on damage=0% deduction. Some effect=15%. Would have prevented all damage= 25%
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Unsuccessful use of the defence in a case with a child claimant. Precedent.
Gough v Thorne. 13yo crosses road after lorry puts out hand to stop traffic and signals her across. Lord Denning says there should be no reduction in her claim bc age is taken into account regarding her trusting the lorry driver's signal.
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Successful use of the defence with a child claimant. How much was the reduction?
Morales v Eccleston. 75% reduction.
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Case for contributory negligence where there are multiple defendants.
Fitzgerald v Lane. The reduction must be made first and THEN the remaining damages can be divided between the multiple defendants.
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What's the latin name for the defence of consent?
Volenti non fit injuria
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Main case for defence of conesnt and precedent.
Smith v Baker. It's not about whether C put himself in a situation where he was aware of the risk. It's about whether he consented to run physical risk without recourse if he was harmed.
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Defence of consent is rarely successful these days. What case was it successful in and why?
Morris v Murray. (Two drunk idiots get in a plane for lols. D is flying it and he crashes & dies. C tries to sue D's estate for his injury.) Court says defence of consent is allowed because it was a gross example of risk taking. C encouraged D.
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DUTY OF CARE EXTRAS FOR ESSAYS Case for there usually being no duty to act (no good samaritan requirement)
Stovin v Wise
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Case where there was a duty of care to yacht owners near detention centre because it was foreseeable they'd use the yachts to escape
Home Office v Dorset Yacht
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Case where council owed a duty of care to inspect foundations properly
Anns v Merton (now overruled by Murphy v Brentwood)
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What case is the retreat from Anns v Merton?
Caparo v Dickman- the 3 part test (foreseeability, proximity, policy)
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PSYCHIATRIC HARM Case setting out the requirements for liability for psychiatric harm to secondary victims
Alock v Chief Constable of South Yorkshire- tie of love and affection, proximity in time and space, caused by shock
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What if the primary victim is not the secondary victim's spouse or child?
Alcock says C must prove they have a close tie of love and affection- it won't be automatically assumed like it is for spouses and children.
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What other precedent do we get from Alcock?
Must witness the incident with unaided senses i.e. seeing through a TV screen not enough. However, reasoning in this was that C couldn't identify her relative specifically being harmed. Could have been anyone and she just knew he was at the event.
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Case where woman could claim when seeing lorry rolling towards her children even though it didn't hit them
Hambrook v Stokes
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Case where pregnant woman couldn't claim after seeing blood on the road from car crash
Bourhill v Young
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Case where witnessing 'the aftermath' was enough for proximity because it still looked like the original scene
McLoughlin v OBrien
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Leading Case for Primary Victims and precedent
Page v Smith- D will be liable for psychiatric harm if physical harm was foreseeable
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Rescuers case for regular people. Rescuers case for emergency services (that concerned distributive justice).
Chadwick v British Railways. White v Chief Constable of South Yorkshire
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Case where employer had duty to protect against psychiatric harm caused by workplace bullying
Walker v Northumberland CC
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?idk the precedent yet
Sweeney v Chief Constable
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?
Gali Atkinson v Seghal 2003
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Two traumatic birth cases. One that counted as shock and one that didn't.
Wild and Walters (in textbook)
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Case for involuntary participants. Case for the foster parents who were able to claim.
Doomey v Cammel Laird, W v Essex County Council
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PUBLIC BODY LIABILITY Case where there was no duty of care to potential future victim of Jack the Ripper
Hill v Chief Constable West Yorkshire
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Stepehen Lawrence's friend Case
Brooks v Met Commissioner
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case where police were liable because it was an act that directly caused harm
Robinson v West Yorkshire Police 2018 (knocked someone over chasing drug dealer)
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Super unfair/harsh/problematic public body liability police case that's good for essays
Michael v Chief Constable of South Wales Police and another (Refuge and others intervening) [2015]
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Two fire brigades cases
East Suffolk River Catchment Board v Kent, Capital Counties v Hamshire CC
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Coastguards case
OLL v Secretary of State for Transport
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Ambulance Case
Kent v Griffiths
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Case that current occupiers liability legislation built on
Herrington v BRB 1972
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Occupiers Liability Act 1957 s2(1)
S2(1)An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty by agreement or otherwise.
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s2(2)?
S2(2)The common duty of care is: A duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupie
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Case for who counts as the occupier
Wheat v Lacon
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Case that took practicality into account ("you cannot mop")
Kiapasha v Laverton 2002
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Fell from drop at castle where there was no ‘mind the drop/edge’ sign or anything like that. Was allowed to claim but was held 50% contributory negligence.
English Heritage v Taylor
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"When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters"
• Scrutton LJ in The Calgarth
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What is the difference between the 1957 and 1984 acts?
The 1984 act covers unlawful visitors and should only be used if the problem question concerns trespassers. For lawful visitors, there is an automatic DOC under s52 of the 1952 Act. For trespassers, there's a 3 part test under s1(3) 1984 Act.
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What is the 3 part test for duty of care under 1984 act?
s1(3)(a): Occupier must be aware, or have reasonable grounds to believe in, the danger. s1(3)(b): Occupier has reasonably grounds to believe the other is in the vicinity of the danger. s1(3)(c): The risk is one which........
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What does the third bit of the 3 part test that was cut off on the previous card say? What does it mean?
s1(3)(c): The risk is one which, in all circumstances, the occupier should have reasonably been expected to offer some protection.// For this, you can take all sorts into account i.e. cost/easyness of fixing/safeguarding risk, seriousness of risk etc
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Leading Case for Occupiers Liability for Tresspassers
Tomlinson v Congleton Borough Council
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What 2 precedents do we get from Tomlinson?
Harm/injury must be caused by the STATE OF THE PREMISES, not by some weird action you took. (Jumping out of a window vs leaning against faulty window and falling out) Also, you can still be taking an obvious risk if you saw others doing it unharmed.
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Section of 1984 act showing putting up warnings can negate your liability sometimes.
s5
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s6 showing occupiers won't be liable for a trespasser 'willingly taking a risk.
s6
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Case where climbing over visibly pointed fence was taking obvious risk.
Burke v S Education and Library
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Case where coming off path on hill was taking an obvious risk.
Cotton v Derbyshire
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Case where walking on algae covered rocks was taking obvous risk.
Staples v W Dorset DC
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Case showing you're still taking an obvious risk even if you're acting in the spirit of youth or being inadvertant.
Evans v Kosmar
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Case showing you won't be taking an obvious risk if you're too young to be expected to take note of it
Herrington v BRB 1972
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Case showing you won't be found to be taking obvious risk if you were incapaciated meaning you couldn't be aware of it (blindness in this case)
Pollock v Cahill 2015
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What else did Tomlinson tell us about whether someone will have taken an obvious risk?
You won't have taken an obvious risk if you had no choice but to take it.
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Other cards in this set
Card 2
Front
Universal approach to duty of care
Back
Donoghue v Stevenson neighbour principle
Card 3
Front
What does breach concern?
Back
Card 4
Front
Case for learner drivers having same standard of care (SOC)
Back
Card 5
Front
Case for SHO having the same SOC for the basic skill of patient history taking. Also shows tort is concerned with the task at hand and fulfilling the post you're filling rather than D's experience/skill level.
Back
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