DUTY OF CARE- The 'ROBINSON' test: 'Courts should follow previous precedents that have been made and have direct relation with the case. If there is no set precedent then you should use a precedent that is simila to the case, indirect. This precedetns can be found in law reports. This maintains consistency of the law and avoids any inappropiate distinctions.'
- Robinson v. Chief Constable of West Yorkshire (2018)
'NEIGHBOUR PRINCIPLE'Lord Atkin decided that the Cl was a neighbour of the D if the D was...'... a person so closely affected by the D's act that he ought reasonably to have the Cl in mind when carrying out the act.'
- Donoghue v. Stevenson (1932)
-The 'CAPARO' test: used by the courts to distinguish whether the duty exist
- The loss/ harm was forseeable to the D.
Jolley v. London Borough of Sutton (2000)-The council could forsee some harm to the boy from the old boat on the Council land, even though the boat falling on him was not directly forseeable.
- There was proximity between the Cl and the D.
McLoughlin v. O'Brien (1981)There was proximity between the victums mother and the negligent driver. Even though she wasn't directly involved in the car accident, she saw the victims (her family) at the hospital so soon after the accident it was as though she was at the scene.
- It is fair, just and reasonable to impose a duty.
Mulcahy v. MOD (1996)It was not fair to impose a duty on the MOD to supply ear protectors during a battle as a thrid party providing them might die/injured when providng them.
Negligence
BREACH OF DUTY - The 'REASONABLE person' test: The D's conduct is compared tothat of a reasonable person in the same situation (the 'objective' test).Blyth v. Birmingham Waterworks
Bolton v. Stone (1951)As the risk of harm from the cricket ball escaping the grounds was low, the club had acted resonably by having a 17 ft high fence. The victum outside the groud that was hit had no claim.
Latimer v. AEC (1953)As the cost of closing the factory was too high it was reasonable for the factory owner to cover the slippery floor with sawdust as a cheaper option even though an employee slipped and was injured.
Bolam v. Friern Barnet Hospital (1957)A D is compared to other reasonable professionals in the same profession in this case a doctor. Evidence showed that other doctors who would carry out the same therapy did so in the same was as the D in this case. So the D had acted like some other medical opinions so therefore had acted reasonably.
The LOSS/HARM must be CAUSED by the BREACH
'But for' the D's breach of duty would the loss/harm occurred?Barnett v. Chelsea & Kensington Hospital (1969)Due to the type of poison in his body, the V would have died anyway so the hospital's breach of duty by not attending to him did not cause his death.
-Remoteness of damage: The D is only liable for the losses 'reasonably foreseeable' to the D.The Wagon Mound (1961)The ships owner was not liable fo rthe fire on the habour two days later, after the oil spillage as the fire was not reasonably foreseeable. The 'thin skull' rule: you take the victim with all there weaknesses and vunerabilities. Smith v. Leech Brain (1962) The employer did not provide a face mask, and a spark burnt the V's lip which activated the V's unknown pre-cancerous condition. the employer was liable fo rthe death, even though it was not foreseeable.
TORT LAW Negligence
Maddie Edwards
Created on April 13, 2021
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Transcript
DUTY OF CARE- The 'ROBINSON' test: 'Courts should follow previous precedents that have been made and have direct relation with the case. If there is no set precedent then you should use a precedent that is simila to the case, indirect. This precedetns can be found in law reports. This maintains consistency of the law and avoids any inappropiate distinctions.'
'NEIGHBOUR PRINCIPLE'Lord Atkin decided that the Cl was a neighbour of the D if the D was...'... a person so closely affected by the D's act that he ought reasonably to have the Cl in mind when carrying out the act.'
-The 'CAPARO' test: used by the courts to distinguish whether the duty exist
- The loss/ harm was forseeable to the D.
Jolley v. London Borough of Sutton (2000)-The council could forsee some harm to the boy from the old boat on the Council land, even though the boat falling on him was not directly forseeable.- There was proximity between the Cl and the D.
McLoughlin v. O'Brien (1981)There was proximity between the victums mother and the negligent driver. Even though she wasn't directly involved in the car accident, she saw the victims (her family) at the hospital so soon after the accident it was as though she was at the scene.- It is fair, just and reasonable to impose a duty.
Mulcahy v. MOD (1996)It was not fair to impose a duty on the MOD to supply ear protectors during a battle as a thrid party providing them might die/injured when providng them.Negligence
BREACH OF DUTY - The 'REASONABLE person' test: The D's conduct is compared tothat of a reasonable person in the same situation (the 'objective' test).Blyth v. Birmingham Waterworks
- Degree of risk
Bolton v. Stone (1951)As the risk of harm from the cricket ball escaping the grounds was low, the club had acted resonably by having a 17 ft high fence. The victum outside the groud that was hit had no claim.- Cost of precaution
Latimer v. AEC (1953)As the cost of closing the factory was too high it was reasonable for the factory owner to cover the slippery floor with sawdust as a cheaper option even though an employee slipped and was injured.- Professionals
Bolam v. Friern Barnet Hospital (1957)A D is compared to other reasonable professionals in the same profession in this case a doctor. Evidence showed that other doctors who would carry out the same therapy did so in the same was as the D in this case. So the D had acted like some other medical opinions so therefore had acted reasonably.The LOSS/HARM must be CAUSED by the BREACH
- Factual causation
'But for' the D's breach of duty would the loss/harm occurred?Barnett v. Chelsea & Kensington Hospital (1969)Due to the type of poison in his body, the V would have died anyway so the hospital's breach of duty by not attending to him did not cause his death.- Legal causation
-Remoteness of damage: The D is only liable for the losses 'reasonably foreseeable' to the D.The Wagon Mound (1961)The ships owner was not liable fo rthe fire on the habour two days later, after the oil spillage as the fire was not reasonably foreseeable. The 'thin skull' rule: you take the victim with all there weaknesses and vunerabilities. Smith v. Leech Brain (1962) The employer did not provide a face mask, and a spark burnt the V's lip which activated the V's unknown pre-cancerous condition. the employer was liable fo rthe death, even though it was not foreseeable.