Exam (elaborations)
Tort Law Revision Notes - Distinction
- Module
- Tort Law
- Institution
- Queen Mary, University Of London (QMUL)
I achieved a distinction with these revision notes for Tort Law at a Russell Group University.
[Show more]
1 review
By: khanbabaday • 5 year ago
Content preview
DUTY OF CARE 1) Parties3) Defences
2) Cause of action
4) Advice - 3 heads of damages:
§ General damages ∴ put claimant in a position as if tort ≠ committed
DOCTOR’S DUTY TO WARN
• Duty to diagnose / treat / warn of significant risks > every risk
§ Special damages: Out-of-pocket expenses, e.g. baby clothes • Objectively significant:
• Q) Established category? § Costs of raising child: Up to age of majority 1) Bolam test
o Employer/employee: Hatton - Court: May recover general + special damages, but not costs of raising child Sidaway
o Doctor/patient: McFarlane 1) Doctors assume responsibility for physical well being of child, not economic loss - Neck pain, 1% spinal damage ≠ disclosed
o Teacher/pupil: Lewis 2) Benefits can’t be calculated to offset the burdens - No reasonable body of medical opinion would disclose this risk
o Transport operators/passengers: Silverlink 3) Disproportionate to place liability on raising healthy child
o Prison officer/prisoner: Dorset Yacht 4) Distributive justice: Other claimants = ↑ deserving, e.g. suffering physical injury Chester
o Manufacturer/consumer: Donoghue 5) Blessing - Back pain, 1-2% nerve damage ≠ disclosed
- Medical opinion would disclose b/c serious
• If novel, use Caparo test: Cattanach à Australian case
Caparo - Costs of raising child = recoverable 2) Modified Bolam, unless court considers practice = unreasonable
1) Is harm reasonably foreseeable? 1) Deeper pockets w/ doctor’s insurers > parents § Highly anxious patient?
2) Proximity? 2) Sought sterilization ∴ parents didn’t think it was a blessing § Patient requires risk to be disclosed for employment purposes?
3) Public policy reasons: Must be fair, just + reasonable to impose DOC on D § Patient’s history, e.g. bad experience w/ operations
• Disabled child
REASONABLY FORESEEABLE § Patient has physical condition that makes risk ↑ important to them?
Parkinson
• DOC owed to foreseeable victim of harm/class > world at large - Wanted to limit family to 4 children, but sterilization negligently performed + conceived disabled child
3) Material risks test: Would a reasonable patient expect risk to be disclosed?
• Objective test: Would reasonable person in D’s position foresee risk of harm? - Court: Cost of raising child = directly linked to child’s disability e.g. education costs, house adjustments
Pearce
Long Island Railroad - But ordinary costs of raising child ≠ recoverable, e.g. food, clothes
- Recommended a natural birth, 0.1% risk of stillbirth ≠ disclosed
- Dropped package of fireworks + injured X on platform ≠ foreseeable harm
• If mother = disabled - Reasonable patient wouldn’t expect risk to be disclosed b/c low probability
Claimant = susceptible to injury ≠ egg-shell skull rule Rees
Haley - Blind ∴ couldn’t cope w/ raising child, but sterilization negligently performed = conceived healthy child • Not informed of alternative treatments:
- Blind man tripped into trench = injured - Court: Breached her autonomy to not have a child b/c disability Birch
- Court: Reasonably foreseeable a blind man would walk down the street - Steyn: Judicial creativity went too far - 1-2% risk of stroke = disclosed, but not told about MMR scan (no risk of stroke)
- Causation: If warned, she wouldn’t have undertook angiogram
Unborn claimants Wrongful birth claims
• Common law: • Parental claim: Doctor failed to detect disability in utero. If parents knew = abort. • Subjectively significant = important to particular patient
Burton o 1) Must be disabled child Rogers à Australian case
- DOC owed to unborn child = actionable on birth o 2) Abortion lawfully available when breach occurred - Operation to restore eyesight. Doctor assured her good eye would be safe, but both eyes blinded
Rance - Recovered damages b/c it was important to her
• S1 Congenital Disabilities (Civil Liability) Act 1976: Foreseeable claimant if child injured in utero - Doctor failed to detect at 26 weeks: Abortion ≠ lawfully available
o Child claim: Must be born alive w/ negligently inflicted injuries, not naturally occurring o 3) Mother would have undergone an abortion CLAIMANT DIES
• S2: Mother has immunity for negligence, except for negligent driving b/c insured Lee • Claimant’s estate can bring action:
- Both parents suffered epilepsy ∴ ↑ risk of foetal abnormality o Law Reform (Miscellaneous Provisions) Act 1934: Limited damages
PROXIMITY - High-resolution ultrasound to ensure healthy child + told doctor she’d terminate if disabled child o Fatal Accidents Act 1976: Recover damages for loss of dependency, e.g. income
Geographical proximity - Would have incurred costs of raising healthy child ∴ only awarded extra costs of raising § Period between negligence + death
Dorset Yacht disabled child Hicks
- Prison officers left Borstal boys unsupervised at night ∴ damaged claimant’s boat - Daughters lost consciousness for 3 mins ∴ recover damages within that period
- Geographically close: Small class of persons at risk = proximity Wrongful life claims
§ Not financially dependent on minors ∴ FA ≠ relevant
• Child claim ≠ lawful, b/c cannot argue they shouldn’t exist
Lewis Essex
- Kindergarten teacher left child (4) unsupervised, b/c attended to another child - Mother exposed to measles ∴ severely disabled child
- Child collided w/ lorry + driver died
- Court: L = one of a class of road users ∴ anyone could have been hit by kid ≠ proximity
- Banned in English law:
1) Duty cannot be to destroy child, b/c breaches sanctity of life BREACH OF DUTY
2) Cannot compare existence of disabled child to non-existent child ∴ cannot quantify damages
Palmer v Tees
- Before releasing psychiatric patient, Armstrong said he had sexual feelings towards minors Barristers SET STANDARD OF CARE
- Missed hospital appointments + ↓ supervision ∴ raped + murdered Rosie Palmer (4) • No immunity • Standard of reasonable man ≠ standard of perfection
- Rosie = one of general public at risk of Armstrong’s activity, no special risk ≠ proximity Simons
D’s particular characteristics
1) Other professions ≠ immune
Knowledge proximity Age = suppresses standard of care
2) Public confidence in legal system
Dorset Yacht • Extremely young
3) Weeds out “bad eggs”
- In prison ∴ officers knew of their criminal tendencies = proximity Lewis
OMISSIONS - Child ≠ negligent for wandering onto road
Lewis • No duty to rescue: Stovin v Wise
- Teacher knew kids act unpredictably = knowledge proximity o 1) Causation issue • Child expected to reach standard of “ordinarily prudent + reasonable” X-aged child in D’s position
o 2) Restricts autonomy Mullin
Hill o 3) Why place burden solely on 1 person? - Sword fight (15) w/ rulers = snapped + blinded ≠ breach
- Jacqueline Hill = last victim of Yorkshire Ripper (Peter Sutcliffe) o 4) Floodgates - Reached standard of care reasonably expected of 15 year old
- Mother argued police were negligent in capturing him
- Police didn’t know who Yorkshire Ripper was ≠ proximity Exceptions Inexperience
1) Special relationship: D fails to control 3 rd party: Dorset Yacht • Professional context: Inexperience ≠ suppress standard of care
Temporal proximity Wilsher
Palmer v Tees 2) D creates source of danger
Haynes v Harwood - Junior doctor put capita in vein > artery = blinded baby ∴ breach
- 12 months between release + damage ≠ proximity
- D left horse unattended = bolted ∴ injured policeman = DOC
• Non-professional:
Relational proximity - Reasonably foreseeable that any noise would spook horse, especially in school area
Weston
• Pre-existing relationship ∴ assume responsibility for C’s welfare - Inexperienced driver hit lamppost = broke N’s leg
Topp
• If D exerts ↑ control over C = ↑ relational proximity - Standard applied to a new driver = that of an experienced + skilled driver
- Bus left unattended w/ keys in ignition = stolen + killed T ≠ DOC
PUBLIC POLICY: Fair, just + reasonable to impose liability? - Haynes horse = inherently dangerous vs. bus requires human intervention
Dangerous sports / recreational activity
Police in criminal investigations à Michaels / Osman
3) D knew/ought to have known 3 rd party created danger on his property + failed to take reasonable steps to • Lower standard of care: D must not show reckless disregard for claimant’s safety
Hill o Inherent risk / makes urgent decisions / participants + spectators voluntarily accept risk of physical harm
prevent
- Public policy reasons precluded imposing DOC on police - Sumner
Goldman
1) Defensive practices = fewer arrests - Cameraman at horse show = injured
- Tree caught on fire + spread to neighbour’s property = DOC
2) Diverts resources for litigation > investigating crime - No reckless disregard b/c told him to step back + rider controlled horse
1) Experienced landowner knew risks of not putting out fire
3) Leave it to Parliament, not courts
2) Cheap steps, e.g. water down/remove tree
4) Floodgates Specialism = elevates standard of care
Littlewoods Bolam
Wrongful conception claims - “Ordinary skill of an ordinary competent man exercising that particular art”
- Cinema owner unaware of vandalism + fire spread to neighbour’s property = no DOC
• Parental claim: Doctor negligently performed sterilization ∴ conceived unwanted child
McFarlane 4) D assumed responsibility to C • GP
- Wanted to limit family to 4 children, but vasectomy negligently performed + conceived healthy child Mitchell Holt
- D threatened to kill M. Council warned D to stop, or else evicted ∴ D killed M - GP failed to identify symptoms, later hospitalized w/ brain hemorrhage
- Not fair, just + reasonable to impose DOC to protect M from D’s criminal acts - Lacked usual symptoms ∴ no breach
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller lawnotesxo2. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for £7.99. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
67474 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy revision notes and other study material for 14 years now