Case Analysis Test 19/08

• Basic structure:

  Intro: I have been asked to advise....on....I will be using the negligence line of cases including....

  (then start ILAC)

  I = issue 1

  L = "as held in ...."

  A = prosection would argue (apply or distinguish the case), defence would argue in return (apply or distinguish)

  C = what argument is stronger and the outcome

  ***Repeat for next issues***

  Conclude: overall what you advise - answering the question.
• Clear duty of care:

  Manufacterer and consumer

  Retailer and customer

  Parent and child

  Repairers/suppliers and customer
• Duty of care:

  Donoghue v Stevenson

  Grant v Australian knitting mills

  Herschtal v Stewart

  Bolton v Stone

  Miller v Jackson

  Russel v McCabe

  Home office v Dorset Yacht Co

  No duty of care:

  Bourhill v Young

  Palsgraph
• Neighbour principle = must take reasonable care to avoid acts or omissions that you can reasonably foresee will harm your neighbour (persons closely and directly effected that should be in contemplation)
• Egg shell skull rule = if you are proven to be negligent, you are responsible for the full extent of the damage, regardless of whether or not someone has a particular suceptibility
• Contributionary negligence = if the damaged party contributes to the negligence in any way then the compensation can be reduced accordingly.

  • It is up to the courts to figure out this ratio of responsibility
• Volenti non fit injuria = "no harm is done to one who consents"
• Vicarious liability = seeking compensation from a persons employer instead of them - one person is held responsible for a 3rd parties actions

  • Because there is usually more money
• Novus Actus Interveniens =

  A new act

  By someone else

  That happens after the negligence

  That breaks the chain of causation

  • If a new, independent act occurs after the defendants initial act and contributes to the damage this can mean the defendant is no longer liable - breaking chain of causation
• Chain of causation is the sequence of events that connect a defendants actions to the harm suffered by the plaintiff
• All negligence cases:

  1. Donoghue v Stevenson
  2. Grant v Australian Knitting Mills
  3. Herschal v Stewart
  4. Bourhill v Young
  5. Palsgraf v Railroad
  6. Bolton v Stone
  7. Miller v Jackson
  8. Russel v McCabe
  9. Home Office v Dorset Yachts
• Little description of cases (1 word)

  D v S = snail

  G v A = undies

  H v S = car

  B v Y = motorcyclist

  P v R = railroad

  B v S = not many balls

  M v J = many balls

  R v M = fireman

  H v D = yacht escape
• Donoghue v Stevenson

  Legal issue: Did the manufacterer owe a duty of care despite no contract

  Decision: Donoghue

  Ratio: Neighbour principle made, therefor a duty of care - also no possibility of intermediate inspection
• Grant v Australian knitting mills

  Legal issue: Duty of care? + was it breached?

  Decision: Grant

  Ratio: Used the neighbour principle and extended it beyond food and drink. Underpants were inspectable but undetectable - could not see chemicals
• Herschtal v Stewart

  Legal issue: Duty of care + was it breached

  Decision: Herschtal

  Ratio: It was inspectable and detectable, but it was unreasonable to check. It is the sellers responsibility to check the safety of a car they know will be used immediately.
• Bourhill v Young

  Legal issue: Duty of care

  Decision: Young

  Ratio: Bourhill was not a foreseeable plaintiff, therefor no duty of care.
• Palsgraf v Railroad

  Legal issue: Duty of care

  Decision: Railroad

  Ratio: Palsgraf was an unforeseeable plaintiff
• Bolton v Stone

  Legal issue: Duty of care, breached or not

  Decision: Stone

  Ratio: Risk was very small - very few balls went over. It was possible NOT probable.
• Miller v Jackson

  Legal issue: Duty of care, breached?

  Decision: Miller

  Ratio: the balls hitting the house was probable not just possible. The court aknowledged they were negligent. ALTHOUGGH, the public interest outweighed the claim and therefor the court did not grant an injunction as a remedy - only compensation.
• Russel v McCabe

  Legal issue: Duty of care, breached or not

  Decision: McCabe

  Ratio: "Danger invites rescue". Any person who makes a situation that needs rescuers is liable for damage
• Home office v Dorset Yacht Co

  Legal issue: Duty of care, breached or not

  Decision: Dorset yachts

  Ratio: The relationship between the officers and the boys created a duty of care because it was forseable that they would try to escape using the only means of escape (the yacht).

  They breached the duty of care by leaving them unsupervised
• Donoghue --> Between manufacterer and consumer of food and drink

  Grant --> Between manufacterer and consumer of ANY product

  Herschtal --> Not just a manufacterer but also service providers and users

  Bolton --> Everyone owes a duty to avoid causing harm to others (to a degree)
• Usual order of issues

  Heading 1 (issue 1): does the defendant owe the plaintiff a duty of care?

  Heading 2 (issue 2): did the defendant breach this duty of care?

  Subheadings:

  1 - did they fail to take reasonable care?

  2 - did the failure to take this reasonable care lead to reasonably forseeable damage?

  Heading 3 (issue 3): sometihng like inspection etc.
• In terms of inspection:

  D v S = could not inspect

  G v A = could inspect but could not detect

  H v S = could inspect and detect but not reasonable
• Stare decisis or the doctrine of precedent = like cases ought to be decided alike.

  Lower courts are bound by the decisions of upper courts
• Ratio = the reason behind the decision
• Obiter = the side notes of a judge - not binding but helpful

  Eg: if the facts were different...we would have decided this differently...
• Public policy = guiding principle of the courts to keep their finger on the pulse of society - considering the effects on the community
• Quote from Donoghue on the neighbour principle

  "You must take reasonable care to avoid acts or omissions which you can reasonably forsee will injure your neighbour" - Lord Atkin
• Quote from Herschel on examination:

  "The mere existence of the opporunity for examination is sufficient to break the chain or destroy the proximate relationships"
• Quote from Bolton:

  "the mere fact that an injury occured does not mean anyone was negligent and the mere fact that a risk was forseen doesn't mean it is negligent not to prevent it if it was a remote, unlikely one"
• Prosecution must establish:

  Duty of care

  Duty of care breached

  • Causation and foreseability

  Can use: Egg shell skull rule
• Defence can ONLY use these:

  Causation (harm could happen anyway)

  Contributionary Negligence

  Volenti non fit injuria (unjustified intervention)

  3rd party intervention - Novus Actus intervenes

  Reasonable anticipation of inspection