Law paper 2

Cards (91)

  • Negligence
    A tort where D must have a Duty of care, Breach of that duty, and Damage caused by the breach
  • Duty of care

    • First established in Donoghue v Stevenson and further developed in Caparo v Dickman
    • Current test used is Robinson v CC west Yorkshire police
  • Criteria for establishing duty of care

    • Is it reasonably foreseeable that D's act would cause damage/loss - Kent v Griffiths
    • Is there a previous existing precedent with the same or similar facts that establish a duty of care
  • Existing cases establishing duty of care

    • Doctor to Patient- Sidaway v Bethlem royal hospital
    • Nurses to Patient- Barnett v Chelsea & kensington
    • Teacher to Pupil- X v Bedfordshire
    • Road users- Nettleship v Weston
    • Manufacturer to consumer- Donoghue v Stevenson
    • Employer to Employee- Bradford v Robinson Rental
  • Breach
    • First established the reasonable man test in Blyth v Birmingham waterworks co and developed in wells v cooper adding that they must be performing the same task
  • Existing cases establishing breach

    • Bolam v Friern- Profession accepts more than one way of doing a task, any accepted way is reasonable
    • Nettleship v Weston- Learners and incompetent drivers will be held to the same standards of a reasonable competent driver
    • Mullin v Richards- A child will be judged by the standard of reasonable competent child of the same age
  • Factors courts will consider in determining the standard of care
    • Likelihood/Size/Magnitude of risk: Haley v LEB
    • Have all practical precautions been taken: Latimer v AEC
    • Characteristics of C: Paris v Stepney council
    • Social importance of D's activity: Watt v Hertfordshire
  • Damage
    • Factual Causation - Barnett v Chelsea & Kensington established BUT FOR test
    • Remoteness of damage - Wagon Mound No1 1961 states if damage is foreseeable C can claim, if the damage isn't foreseeable C cannot claim as it is too remote
  • Existing cases on damage
    • Bradford v Robinson Rentals- if type of damage is foreseeable it does not matter if damager suffered is rare or extreme
    • Hughes v Lord Adovocate - If damage is foreseeable, it does not matter if it happens in unforeseeable way
    • Smith v Leech Brain- D must take his victim as he finds them
  • Psychiatric Injury

    • Must be a recognised psychiatric condition resulting from the shock of the incident and capable of having long term effects
    • D must have caused C's psychiatric injury using ordinary rules of causation and remoteness
  • Types of victims in psychiatric injury
    • Primary victims - at the zone of danger
    • Secondary victims - not at the zone but witness the incident or its immediate aftermath
  • Alcock criteria for secondary victims

    • Close ties of love and affection
    • Suffered mental injuries at the scene or in its immediate aftermath
    • C must see or hear of the incident through their unaided senses
    • A person of ordinary fortitude and customary phlegm would have reasonably suffered psychiatric injury
    • The psychiatric injury was induced by shock
  • Economic Loss

    Any loss which leaves C financially well off
  • Consequential economic loss is always recoverable if C can satisfy the rules on causation and remoteness
  • Pure economic loss caused by a negligent act cannot be claimed for as stated in Spartan Steel
  • Duty of care for pure economic loss
    C can claim for pure economic loss caused by a negligent misstatement if they are able to establish a duty of care was owed, as stated in Hedley Byrne v Heller
  • Criteria for establishing a special relationship for duty of care in pure economic loss
    • D must have special skill or expertise
    • D must voluntarily assume responsibility for giving advice
    • D must know that C would rely on the advice and that it was reasonable to rely on the advice
    • C has relied on advice to their detriment
  • Private Nuisance

    An unlawful direct interference with a person's use or enjoyment of their land or rights over it
  • C must have proprietary interest in the land to make a claim
  • Factors courts will consider in determining if a private nuisance is unreasonable
    • Sensitivity of C
    • Duration and time of nuisance
    • Character of the area
    • Acts of malice
    • Social benefit
  • There must be some damage, harm or inconvenience to C, and the damage must be reasonably foreseeable
  • Injunction
    Prohibits or controls an activity, won't be granted for trivial matters or where it's in the public interest for the activity to continue
  • Rylands v Fletcher
    D brought something dangerous onto the land which has escaped and caused damage
  • Criteria for Rylands v Fletcher
    • D must voluntarily bring onto his land an accumulation of substance which escapes and it must be an artificial accumulation
    • Accumulated substance must be dangerous
    • Must be a non-natural use
    • Dangerous thing must escape
    • Only damage stored on the land can be recovered
  • Defences to Rylands v Fletcher

    • Act of God
    • Act of Stranger
  • Vicarious Liability

    Employee remains jointly liable with their employer for their actions
  • Substance moves from D's land to a land they don't control
  • Reads v Lyon
    • Claim failed as C got injured on D's premises so there wasn't an escape
  • Stannard v Gore
    • D had bought tires on premises not the fire
  • Only damage stored on the land can be recovered, damage anywhere else and personal injury can't be claimed for as seen in Rylands
  • Cambridge water co v eastern held that only damage which is foreseeable is recoverable
  • Act of God

    A natural event so enormous that it can't be foreseen or guarded against
  • Nichols v Marsland
    • D was not liable as there was nothing he could do
  • Act of Stranger
    D is not liable if the escape is caused by the deliberate and unforeseen act of a stranger
  • Perry v Kendricks
    • D was not liable as the act was caused by the deliberate act of a third party
  • Vicarious Liability
    Employee remains jointly liable with their employer for their actions. C can sue employee but more likely to sue employer. Employee and vicariously liable employer are jointly and severely liable for damages to which C is entitled
  • To establish vicarious liability against an employer

    • The wrongdoer has committed the tort against C
    • Establish that wrongdoer is an employee
    • Economic test is that having considered all the facts of the case, the court decides whether the overall picture of a worker is closer to an employee or to an independent contractor
  • Hawley v Luminar Leisure
    • Original test is the control test stating an employee is a worker who is told that to do and how to do it
  • Dragonfly Consultancy Ltd v HMRC

    • The club exercised so much control over the manner in which the employee carried out his work that they effectively employed him
  • Ready mixed concrete v minister of pensions

    • Drivers were independent contractors because they owned major assets and profit depended on their decisions