Summary Tort Law SQE FLK1 Revision Cheat Sheet

Tort: Backbones Notes
Negligence
 Duty of Care – Donoghue v Stephenson
o Established precedent
 Established duty to other road users
 Established duty for medical professionals
 Duty where responsibility assumed for the safety of that person
o Novel Cases – Caparo
 Foreseeability – Objectively what would a reasonable person be
expected to foresee.
 Sufficient relationship of proximity
 Fair, just and reasonable to impose a duty (policy considerations)
 Deterrent for undesirable behaviour
 Floodgates
 Insurance
 Crushing liability
 Defensive practices
o Omissions
 General rule – no duty for failure to act
 Except
 Statutory
 Contractual
 Sufficient control
 Assumes responsibility
 Creates risk
 Case Law
 Ambulance owes duty to respond to 999 call in reasonable
time.
 Fire brigade have a duty not to make the situation worse
 Police owe no duty to respond to emergency calls
o Acts of third parties
 General rule – no duty
 Except
 Sufficient proximity between D and C
 Sufficient proximity between D and 3rd party
 D created danger
 Risk was on the D’s property
 Breach of Duty – a question of fact and a balancing exercise (Wagon Mound)
o Standard of Care – Non-professional
 Impersonal objective test
 What the reasonable person would do
 Consider the Act not the Actor

,  Standard of learner driver is a normal driver
 Lower standard for
 Children
 Illness and Disability
o Breach of Duty – non-professional
 Likelihood of harm – should precautions have been taken?
 Magnitude of harm – consequences significant?
 Practicality of precautions
 Benefit – aim of preserving life, limb or property?
o Standard of Care – Professional
 Bolam
 Standard of a reasonable professional in that field
 Not negligent if acting in accordance with practice.
 Clinical Negligence
 Limb 2 of Bolam – in accordance with practice?
 Case Law
o Risk is foreseeable and would be anticipated
o Does not need to be a majority but simply an acceptable
opinion.
o Commonplace, reasonable and responsible
o Must keep up to date but not in obscure journals
 Advice on risk  must take reasonable care to ensure that the
patient is aware of any material risks.
 Non-Clinical Negligence
 Limb 2 of Bolam – in accordance with practice?
 Post-Bolam case law
 Breach Factors
o Likelihood
o Magnitude
o Practicality of Precautions
o Benefit
 Causation
o Factual Causation
 ‘But for’ Test – on the balance of probabilities
 Multiple events – where not clear which is the cause
 Material contribution test
 A more than negligible contribution to the claimant’s loss
 Multiple events – each contributing
 Material increase in risk test
 D’s joint and equally liable.
o Legal Causation
 The chain of causation can be broken by novus actus interveniens
 Acts of God – exceptional natural event