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40 Cards in this Set
- Front
- Back
2 Stages |
1. Standard of Care
2. Have they fallen below it. |
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General Rule
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The task being performed determines the standard. Defendant must behave as a reasonable would in all the circumstances. case: |
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Blyth v Birmingham Waterworks (1856) |
"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man wouldn't do" also: |
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Vaughan v Menlove
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Haystack beside claimant's land, caught fire. Damaged the land. Defendant had ignored warnings this might happened 'because I'm insured'. Said had misjudged the risk. Court said liable - a reasonable person wouldn't have taken that risk. |
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Reasonable man |
Hall v Brooklands Auto Racing: Greer LJ 'man in the Clapham Omnibus' |
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"If one thinks in a particular situation the great majority of people would have behaved in one way, it would not be right to say that a reasonable man would or should have behaved in a different way. A 'reasonable man' does not mean a paragon of circumspection." |
AC Billings & Sons v Riden
The Objective Standard |
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Learner driver, judged by standard of ordinarily competent driver.
Driver has duty to passenger and every pedestrian and "must attain the same standard of care in relation to each." |
Nettleship v Weston: Also - knowledge of the driver's inability/drunkenness does NOT take away the duty nor diminish the standard though may reduce damages on defence of contributory negligence. |
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Teacher injured with a basketball while climbing stairs. |
Etheridge v East Sussex County Council: Failed because the school had systems and procedures in place to protect against such an accident. i.e. Don't have to give absolute guarantee of safety. |
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There is an element of subjectivity |
Glasgow v Muir, Lord Macmillan |
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Professional Standard |
Standard is of a reasonable professional: Bolam v Friern Hospital Management Committee: Electro convulsive therapy - "ordinary skill of an ordinary competent man exercising that particular art." |
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Lower Standard |
Children only. (Not adults - Nettleship) McWhale v Watson Child = factor but not any other characteristic (e.g. stupid/inexperience/) |
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Defendant and claimant were 15. Plastic ruler in the eye. Court said schoolgirls couldn't reasonably have foreseen the risk. |
Mullin v Richards |
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"The act and not the actor" |
Wilsher v Essex Area Health Authority
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Problem Cases jeweller (piercing) not required to keep standard of a surgeon, just that of a jeweller... |
Philips v William Whiteley
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DIYer held to ordinary man standard because doing a DIYable task done by normal people. Not for e.g. electrical wiring/plumbing... |
Wells v Cooper |
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Stage hypnotist, had to have the standard of a 'reasonably careful exponent of stage hypnotism' |
Gates v Mckenna |
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Conversely, professionals claiming to possess higher skill is measured to standard of ORDINARY pros. |
Wimpey Construction UK v Poole |
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if defendant takes on task they should KNOW is beyond them this may in itself be evidence of negligence |
Greaves & Co v Baynham Meikle & Partners |
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Illness/Disability Elderly man had stroke driving. Crashed, judged at reasonable competent driver standard. Because didn't have total loss of control/conciousness. Why didn't he stop when realised couldn't drive. |
Roberts v Ramsbottom
c.f. |
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Lorry driver, hypoglycaemic state. Didn't know his driving was impaired. Therefore wasn't liable.
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Mansfield v Weetabix Ltd |
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Sport, or even horseplay (Blake v Galloway) as long as they basically follow the rules etc (don't jump on his prostrate legs etc) |
Football Condon v Basi - "The standard of care varies according to the level of expertise the player has. The Defendant was in breach of duty as the tackle was reckless even with regards the standard expected of a local league player. Whilst a participant can be taken to accept the risks of injury inherent to such sporting activities they do not accept the risk of injury which occurs outside the rules of the game." Watson v Gray, the Times |
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Establishing Breach of Duty |
have they met the standard? Very case specific. Did defendant act in accordance with normal practice? case: |
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Maynard v West Midlands Regional HA |
Doctor following standard practice adopted by a 'reasonable body of medical practitioners' But: |
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Common practice ITSELF may be considered negligent |
Re Herald of Free Enterprise, the Independent: sailing ferry with bow doors open (morons, that's capitalism for you) |
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Magnitude of Risk |
The more likely it is someone will get injured/damage, the more likely there will be a breach. case: |
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Bolton v Stone |
Claimant hit by stray cricket ball. Evidence showed six times in 30 years and there was a massive fence. i.e. was very unlikely = no breach. c.f. |
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Pearson v Lightning, the Times |
Golfer, ball bounced off tree and injured another. Very foreseeable that the claimant might get injured if shot went wrong. i.e. very high risk = liable. |
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Seriousness of Injury |
If the possible injury would be serious = higher standard of care. case: |
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Paris v Stepney Borough Council |
Claimant had one good eye. Metal took it at work because he wasn't wearing goggles. Though the risk was slight the consequences were huge = defendant = liable. |
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Watson v British Boxing Board of Control |
Brain damage = very serious injury. The risk in this sport therefore defendants are liable. |
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same where a claimant is less able to take care of self = greater standard/duty... |
Paris v Stepney Borough Council (metal 1 eye) Yachuk v Oliver Blais Co Ltd: sold petrol to a nine year old (FFS). |
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Practicality of Precautions |
Latimer v AEC Ltd: slippy factory floor. Took precautions but the only sure fire way would've been to shut the factory, which would have been excessive considering how small the risk. c.f. |
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Bottomley v Secretary and Members of Todmorden Cricket Club, the Times
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Firework display independently contracted. Injury. Club hadn't checked contractor's safety plans nor public liability insurance and were therefore liable. BECAUSE checking the insurance would have shown that the contractors were competent. c.f. |
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Payling v Naylor, the Times |
doorman (from security firm) injured claimant chucking him out. Defendant, (employer) didn't have to check insurance in this case because wouldn't have helped in assessing the competence of firm. (God knows why but there it is) |
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The Utility or Potential Benefit of Defendant's Conduct |
i.e. trying to save someone Watt v Hertfordshire County Council: Fireman injured on way to rescue lady. Equipment not properly secured. Employers not liable, speed was of the essence and the mistake therefore acceptable. c.f. |
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Ward v London County Council |
Fire engine jumped a red light. Crash. Risk was too high to excuse. Therefore liable. |
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Compensation Act 2006 s1 |
make sure don't discourage future beneficial acts Scout Association v Barnes |
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Proof of Breach |
Burden is on the claimant to prove the defendant breached the duty of care, on BALANCE OF PROBABILITIES (i.e. more likely than not). Smith v Kempson |
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Civil Evidence Act 1968 s11 |
If act leading to the injury led to a criminal conviction this works in the claimants favour then if presented in civil court the court will infer negligence. Defendant must DISPROVE it. |
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Res Ipsa Loquitur (WON'T come up) |
facts speak for themselves - no other possible explanation. Scott v London and St Katherine Docks: sacks of sugar. |