Tort – Common law

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 BRB (rescuer) With-in the physical zone of danger – Secondary Victims Alcock v CC of South Yorkshire (Alcock-Test) – Close tie of love and affection to the primary victims (Bourhill v Young, failed due to lack of proximity) – Witness the event with their-own unaided senses – Close proximity in time and space to the event or its “immediate aftermath” (McLoughlin v O’Brian, witness to “immediate aftermath”) – Psychiatric injury must be a result of a shocking event (Sion v Hampstead HA, failed due to lack of “shock”).

McLoughlin v O’Brian Immediate aftermath White v CC South Yorkshire Rescuers as a group can not claim and also not in physical danger Occupier’s liability Act1957 Start by stating “definition of “occupier” not is 1957 Act Duty arises after satisfying criteria in s. 1(3) Wheat v E Lacon Occupational control, may be more than one occupier of the same premise Harris v Birkenhead Corp No need for physical occupancy, sufficient control of premise impose duty Child visitors s. 2(3)(a) Phipps v Rochester Corp No allurement, parents should be watching, age matters, not liable Taylor v Glasgow Corp Allurement for kids, liable Jolly and Sutton BC Allurement by boat Common Calling s.

2(3)(b) Roles v Nathan The danger is ordinary to their work, special risk, not liable (chimney) Ogwo v Taylor Extra ordinary risk exposure (rescuer) Salmon v Seafarer Restaurant (rescuer) Special skill fail to protect, so liable Implied License Lowery v Walker Repeated trespass and failure to stop created implied license Inherent risk Tomlinson v Congleton Activity contains inherent risk, not in the premise, not liable Danger due to Independent contractors s. 2(4)(b) Haseldine v Daw Unable to verify work by occupier due to complex in nature, not liable Woodward v Mayor of Hastings Slippery floor, easy to inspect work by occupier thus liable Ferguson v Welsh Sub-contr.

Liable, not the main contractor or the owner Warnings and Warning sign s. 2(4)(a) reasonable White v Blackmore Warning must cover the danger that in fact arises Darby v National Trust No duty to warn against obvious risks Defenses Volenti s. 2(5), Contributory Neg. LR CN Act 1945, Exclusion of liability s. 2(1) Unfair Contract Terms Act 1977, if it business then subject to it Occupiers Liability Act 1984 Trespasser are protected only for death or injury not their property.

Duty of Care Donoghue v Folkestone Properties Circumstances of the activity/time of breach should prevail s. 1(3) Not liable, D does not anticipate midnight winter diving Standard of Care Revill v Newbery No duty since it was an activity not due to state of premise Ratcliff v McConnell Enough precaution taken thus not liable Same defenses Vicarious Liability Was a tort committed? Was the tortfeasor is an employee? Was that in the course of employment? Employee? Traditional application is Control Test, who does the work, the method, wages or dismiss in control (Short v J & W Henderson Ltd 1946). Or is the person an integral part of the business?

(Cassidy v Minister of Health 1951) But further developed due to technological and economic advances: economic/Composite Test; who provides the tools and whether the employee can hire assistance; further management responsibility and profit sharing? (Market Investigations Ltd v Minister of Social Security 1969) (Ready Mixed Concrete v Minister of Pension) Borrowed Employee? Shifting of responsibility to the temporary employer, difficult to shift liability if technical or special skills involved so the tasks operation; even with the absence of paying them wages (temp paid in this case) were controlled by the original employer. Mersey Docks & Harbour Board v Coggins Ltd 1946 Contrast: Hawley v Luminar Leisure Ltd.

2006 (Club) Temp employer liable since original employer just performing supervisory task, its not same as control. Via Systems v Thermal Transfer (dual vicarious liability) distinguish for defense. Employee under contract and commit tort? Mattis v Pollock (Club) Liable, violent, act on his own but still Hawley v Luminar (club) In the course of the employment? Prohibition which limit scope of employment Or which limits conduct within the scope of employment? Rose v Plenty Smith v Stages (drove together) Act of own benefit of employee but still liable, careless act but with in the course of employment Century Insurance v Northern Ireland RTB Close connection (trust, part of duty; time and space with in employment) Lister v Hesley Hall Ltd (2001).