Tort

Topics: Tort law, Tort, Common law Pages: 5 (1385 words) Published: June 13, 2013
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(Last minute Exam Revision)

Tort: Negligence: MEDICAL Prima facie duty owed by the Hospital/Doctor to patient Cassidy v Ministry of Health (Vicariously liable) BREACH via Standard of Care Wilsher v Essex Experience irrelevant as a doctor; trainee or not, same standard “Bolam Test” Bolam v Friern Management Hospital Committee Expert opinion/body of professional opinion, vice-versa test Level of skill and competency Bolitho v City of hackney Health Authority Applied Bolam Test, opinion must be based on logic and be defensible CAUSATION (both “Factual” and “Legal” should be satisfied Determined on the BALANCE OF PROBABLITIES via “But-For” test Cork v Kirby Mclean “But-for-test” was born Barnett v Chelsea and Kensington Hospital But for test applied Chester v Afshar “But for test” Also, denial of “Personal Autonomy” or non-disclosure of risk ***** CUMULATIVE CAUSEs (If But-For test can not be applied) Bonnington Castings Ltd v Wardlaw Material contribution to the harm (does not have to be “sole” cause) McGhee v National Coal Board Material increase in the risk of harm Bailey v Ministry of Defense (2008) Relaxed rule, not only to industrial (McGhee, Wardlaw) extended to medical. Distinct independent causes as Wisher or cumulative causes as Wardlaw CAUSATION “legal” Wagon Mound No.1 Remoteness test still apply (Hughes v Lord Advocate) Type of injury, reasonably be foreseeable and not too remote Use “egg-Shell” rule (Smith v Leach Brain) If pre-existing condition exists (take the victim as you find)


  Negligence: Medical continues: **Loss of Chance (defense) Balance of probabilities *****Consider Law Reform (Contributory negligence) Act 1945

Hotson v East Berkshire AHA Chances of still harm occurring and how was it reduced or increased Gregg v Scott Diminution of chance might give rise to claim; reduced by LR (CN) Act 1945

Tort: Negligence: Car-Crime-Drunk-Accident-Suicide Driver: General duty of care to other road users and passengers Case law: Langley v Dray Breach: Standard of care Blyth v Birmingham Water Works Co (1856) “Ordinary man” standard with reasonable foresight Nettleship v Weston (1971) Standard as a normal driver regardless of experience or new

Defenses **Voluntary assumption of risk (volenti non fit injuria) Full agreement, full knowledge of risk and be voluntary

-If Motor Vehicle/Driver involvement Road Traffic Act 1988 s.149 (3) (excluded the volenti-defense) Not available as a defense in traffic accidents Non-Motor Vehicle Morris v Murray (drunken pilot) Prior knowledge of risk, no claim Rescuers Haynes v Harwood ICI v Shatwell (rare case to be accepted for full defense)

**Illegality (ex turpi causa) think of public policy in play and of “immoral” acts as well Pitts v Hunt Claim failed due to “in the course of an illegal act”, no standard established Ashton v Turner Duty was not owed due to illegality **Contributory Negligence Law Reform (Contributory Negligence) Act 1945 s 1(1) Froom v Butcher (no seat belt) If whole injury reduce 25% if partial 10%, if non, then nothing reduced Reeves v Metropolitan Police Commissioner (Suicide case) “Fault” s 4, contributed to the “loss”, award reduced Owens v Brimmell (accepted a lift from drunk driver) Careless, fail to consider his own safety Davies v Swan Motor Co (not wearing safety equipment) Failure to take precautions ** Exclusion of liability Unfair Contract Terms Act 1977 s.2(1) can not exclude death/injury s.2(2) and s.11(3) can not exclude property damage if its unreasonable Smith v Eric Bush Not a reasonable exclusion

Tort: Negligence: Psychiatric Injury Basic Hinz v Berry Must be recognizable psychiatric injury, not be a mere fear, sorrow or grief Primary Victim

Dulieu v White (origin) With-in the physical zone of danger Page v Smith (1995) *** No need to proof psychiatric injury separately, as long as physical harm was in foresight. Must be exposed directly to the event in some form or shape. Chadwick v...
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