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Law Second Year > Tort Law - Introduction to Negligence > Flashcards

Tort Law - Introduction to Negligence Flashcards

1
Q

What are the requirements for negligence?

A

D owed a duty of care to the ‘foreseeable victim’, the care was breached, C suffered relevant damage, the breach caused the damage and a test of proximity

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2
Q

Grant v Australian Knitting Mills judgment

A

Donoghue applies further than just sealed products in opaque containers - did product reach V with the same defect as when it left the manufacturer?

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3
Q

Griffiths v Arch Engineering judgment

A

Still DoC even if there was reasonable possibility of inspection by a 3rd party

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4
Q

Stennet v Hancock general

A

‘By-blow’ victim

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5
Q

Stennet v Hancock judgment

A

Duty owed even to a ‘by-blow’ victim, not just consumer

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6
Q

‘By-blow’ victim

A

Stennet v Hancock

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7
Q

Palsgraf v Long Island Railway general

A

Fireworks, train, scales

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8
Q

Fireworks, train, scales

A

Palsgraf v Long Island Railway

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9
Q

Palsgraf v Long Island Railway judgment

A

Not foresseable victim - irrelevant if guards may have owed a DoC to others around

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10
Q

Hay v Young general

A

Pregnant, HEARD collision, stillborn

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11
Q

Hay v Young judgment

A

Not foreseeable victim

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12
Q

What do L&O argue about Hay v Young?

A

Court used foreseeability to cover influence of policy - shock-induced damage was problematic then

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13
Q

Pregnant, heard collision, stillborn

A

Hay v Young

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14
Q

Haley v London Electricity Board general

A

Blind man, excavation

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15
Q

Haley v London Electricity Board judgment

A

DoC to ensure safety of all persons reasonably foreseeable, including the blind and infirm

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16
Q

L&O on Haley v London Electricity Board

A

Difficult to reconcile with Hay - are pregnant people less encountered? Could show gender bias in tort (Mitchell)

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17
Q

Congenital Disabilities (Civil Liability) Act 1976

A

P created ‘foreseeable victim’ - child cannot bring claim against mother for tortious conduct relating to driving

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18
Q

What Act showed P creating a ‘foreseeable victim’?

A

Congenital Disabilities (Civil Liability) Act 1976

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19
Q

Grant v Australian Knitting Mills on breach of DoC

A

Malleability of fault concept, as applied even though manufacturer had done all that could be reasonably expected

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20
Q

Rothwell v Chemical & Insulating general

A

Pleural placques

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21
Q

Rothwell v Chemical & Insulating judgment

A

Need to be ‘worse off’ and change cannot be trivial

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22
Q

Why was the case of Rothwell v Chemical exceptional?

A

Courts had to consider if the injury constituted legal harm, rather than just being about proof

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23
Q

What judge in what case suggested that for damage in negligence, C needs to be ‘worse off’ and change cannot be trivial?

A

Lord Hoffman in Rothwell v Chemical & Insulating

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24
Q

Evans v Triplex Safety Glass general

A

Windscreen, shards

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25
Q

Evans v Triplex Safety Glass judgment

A

No evidence that D’s negligence, present or not, caused the disintegration as opposed to other causes

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26
Q

Windscreen, shards

A

Evans v Triplex Safety Glass

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27
Q

What case explores if D’s conduct CAUSED C’s injury?

A

Evans v Triplex Safety Glass

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28
Q

What kind of test is applied when looking at causation in negligence?

A

But for factual cause

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29
Q

Burrows v March general

A

Defective pipe, gas fitter

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30
Q

What case explores the application of the test of proximity in negligence?

A

Burrows v March

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31
Q

Burrows v March judgment

A

Loss resulted from 3rd party recklessness directly, so no liability

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32
Q

D v East Berkshire Community Health NHS Trust, Lord Rodger

A

‘the world is full of harm for which the law furnishes no remedy’

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33
Q

What judge in what case said that ‘the world is full of harm for which the law furnishes no remedy’?

A

D v East Berkshire Community Health NHS Trust, per Lord Rodger

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34
Q

What quote in what case and by what judge shows that if there is no DoC, there is no action in negligence?

A

‘the world is full of harm for which the law furnishes no remedy’ - D v East Berkshire Community Health NHS Trust, per Lord Rodger

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35
Q

Who was the first academic to recognise a duty of care, and when?

A

Francis Buller in the middle of the 18th century

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36
Q

From what theorists did Buller borrow the idea of DoC?

A

Natural Law School

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37
Q

Natural Law School theory

A

Concern with what duties/obligations are owed as a result of being a member of society

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38
Q

What school of thought is concerned with what duties/obligations are owed as a result of being a member of society

A

Natural Law School

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39
Q

Winterbottom v Wright general

A

Drove coach for postmaster, hired from D, collapsed

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40
Q

Winterbottom v Wright judgment

A

Enforced privity ‘lest the most absurd and outrageous consequences’ ensued

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41
Q

What case showed the early development of negligence, enforcing privity ‘lest the most absurd and outrageous consequences’ ensued?

A

Winterbottom v Wright

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42
Q

Longmeid v Holliday

A

Exception to Winterbottom in regard to articles ‘dangerous in themselves’

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43
Q

What case gave an exception to Winterbottom?

A

Longmeid v Holliday

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44
Q

Exception to Winterbottom in regard to articles ‘dangerous in themselves’

A

Longmeid v Holliday

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45
Q

When was the first normative explanation of DoC in courts, and by who?

A

Heaven v Pender per Brett MR

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46
Q

Brett MR in Heaven v Pender

A

‘Neglect of the use of ordinary skill or care towards a person to whom D owes the duty’

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47
Q

What judge and in what case described a DoC (early on) as ‘Neglect of the use of ordinary skill or care towards a person to whom D owes the duty’?

A

Brett MR in Heaven v Pender

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48
Q

What was the outcome in Heaven v Pender?

A

Other judges rejected the argument of Brett MR on DoC

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49
Q

Le Lievre v Gould general

A

Brett MR tried to resuscitate DoC by suggesting only arises with physical proximity

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50
Q

What case showed Brett MR tried to resuscitate DoC by suggesting only arises with physical proximity?

A

Le Lievre v Gould

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51
Q

When did the courts finally expand and adopt Le Lievre?

A

1930s in Donoghue v Stevenson

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52
Q

How was Le Lievre adopted and expanded in Donoghue?

A

Into notions of closeness and proximity

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53
Q

Donoghue v Stevenson

A

Decomposing snail

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54
Q

What was the ratio in Donoghue v Stevenson in HoL, and on what point?

A

3:2 majority rejected privity of contract fallacy

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55
Q

How was the DoC defined in Donoghue?

A

Owed to persons who ought reasonably to have been in D’s contemplation

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56
Q

How did the court distinguish from Winterbottom in Donoghue?

A

Said Winterbottom claim was founded on D’s BoC with 3rd party, not independent tortious duty

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57
Q

Who in the minority in Donoghue focused on the floodgates argument?

A

Lord Buckmaster

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58
Q

When has Lord Buckmaster’s floodgates argument in Donoghue been most persuasive?

A

In cases concerning pure economic loss

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59
Q

What did Lord Buckmaster argue in Donoghue?

A

The DoC principle has never succeeded in court, so how can it exist as the majority claim?

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60
Q

What moral principle did Lord Atkin inject in Donoghue?

A

‘Good neighbourliness’

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61
Q

Who offered a ‘case by case’ analysis test, more pragmatic than Lord Atkin’s, in Donoghue?

A

Lord Macmillan

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62
Q

Who said ‘there must be, and is, some general conception of relations giving rise to a DoC’, and in what case?

A

Lord Atkin

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63
Q

what did Lord Atkin look to in order to establish a DoC?

A

‘General public sentiment’

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64
Q

How did Macmillan explain Longmeid in Donoghue?

A

Longmeid is not an exception but a stringent degree of diligence to ensure safety

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65
Q

Why did Macmillan believe manufacturers have a DoC to consumers?

A

Because they produce goods for human consumption, and are thus aware of the end result

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66
Q

What was the primary difference between Macmillan’s first and second draft?

A

Widened to focus on English law as opposed to Scottish in second draft

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67
Q

what did Lord Tomlin argue in Donoghue?

A

No material from which to draw Atkin’s principle, and similar principle was rejected in Winterbottom

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68
Q

Was Lord Tomlin in the majority or minority in Donoghue?

A

Minority

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69
Q

Lawson (academic) on Donoghue and DoC test

A

Focus on who you DON’T have a DoC to

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70
Q

What academic highlighted that sometimes you can cause loss to others , e.g. competing businesses, and thus better to focus on who you don’t owe a DoC to?

A

Lawson

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71
Q

Fleming on Donoghue?

A

DoC is a control device to limit an otherwise vast scope of liability

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72
Q

Who saw DoC as a control device to limit an otherwise vast scope of liability?

A

Fleming

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73
Q

Grant v Australia Knitting Mills general

A

Long johns, rash

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74
Q

Weir on Grant v Australia Knitting Mills

A

Rate of failure was so low that manufacturer should have got a prize, not a finding of negligence

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75
Q

Who argued Rate of failure was so low in Grant that manufacturer should have got a prize, not a finding of negligence?

A

Weir

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76
Q

What case seems to suggest negligence isn’t really fault-based, due to super low rate of failure still leading to negligence claim?

A

Grant v Australia Knitting Mills

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77
Q

Hedley Byrne v Heller

A

Donoghue does not apply to purely financial loss

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78
Q

Donoghue does not apply to purely financial loss

A

Hedley Byrne v Heller

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79
Q

What two cases show general development of Donoghue principles?

A

Hedley Byrne v Heller; Home Office v Dorset Yacht Co Ltd

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80
Q

Home Office v Dorset Yacht Co Ltd general

A

Character forming

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81
Q

Home Office v Dorset Yacht Co Ltd judgment

A

Cannot always just apply Donoghue - endorsed Atkin’s speech as a ‘statement of principle’, not statutory definition, and incrementalist approach to DoC

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82
Q

What case stated that Donoghue should apply unless there is a justification for its exclusion?

A

Home Office v Dorset Yacht

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83
Q

What case endorsed Atkin’s speech in Donoghue as a ‘statement of principle’, not a statutory definition?

A

Home Office v Dorset Yacht

84
Q

Anns v Merton LBC general

A

Two-stage test of negligence

85
Q

What is the test from Anns v Merton LBS very similar to?

A

Academic writings by Fleming and Lawson

86
Q

Anns v Merton LBC two-stage test

A

Should D have had C in contemplation, and D has an opportunity to show policy reasons for no DoC

87
Q

In what case was Anns v Merton LBC overruled?

A

Murphy v Brentwood District Council

88
Q

Murphy v Brentwood District Council judgment

A

Overruled Anns v Merton LBC two-stage test

89
Q

What test came after Anns v Merton LBC?

A

Three stage test in Caparo Industries v Dickman

90
Q

What judge gave the three stage test in Caparo v Dickman?

A

Lord Bridge

91
Q

what is the 3 stage test in Caparo?

A

Reasonably foreseeable C would suffer as a result of D’s act, relationship of proximity and fair, just and reasonable to recognise DoC

92
Q

How can the test from Caparo be criticised?

A

Tempting to say D ought to have had C in contemplation when we know C has suffered harm

93
Q

Who argued that proximity in Caparo, despite being under its own heading, was not a separate ingredient, and in what case?

A

Lord Nicholls in Stovin v Wise

94
Q

Stovin v Wise

A

Proximity in Caparo, despite being under its own heading, was not a separate ingredient - just another way of testing fair just and reasonable

95
Q

Hill v Chief Constable of West Yorkshire general

A

Sutcliffe, last victim

96
Q

Hill v Chief Constable of West Yorkshire judgment

A

No prior relationship to satisfy proximity test under Caparo

97
Q

Hickman on proximity test

A

‘Underpinned by policy considerations’

98
Q

Who argued the proximity test is ‘underpinned by policy considerations’?

A

Hickman

99
Q

How do L&O describe the fair just and reasonable test?

A

‘General repository for a miscellaneous set of policy arguments, undefined in nature and unlimited in number’

100
Q

Who called the fair just and reasonable test a ‘General repository for a miscellaneous set of policy arguments, undefined in nature and unlimited in number’?

A

L&O

101
Q

What does Beever argue about the fair just and reasonable test?

A

If courts keep making such policy choices, as L&O suggest, legislature should take control and replace common law with statute on negligence

102
Q

Who suggested that If courts keep making such policy choices, as L&O suggest, legislature should take control and replace common law with statute on negligence?

A

Beever

103
Q

XA v YA general

A

Violent father, FIRST INSTANCE

104
Q

XA v YA judgment

A

No DoC as would have required Mum to break up family, likely to be abused herself and how can courts work out best interests of child 30/40 years ago

105
Q

What is an example of the courts searching for extent of DoC from parent to child?

A

XA v YA

106
Q

McFarlane v Tayside Health Board general

A

Vasectomy, child

107
Q

McFarlane v Tayside Health Board judgment

A

HoL allowed claim for distress of pregnancy and childbirth, ut not for upbringing

108
Q

What judge in what case shows explicitly how a judge’s sense of morality shapes the law in negligence?

A

McFarlane v Tayside Health Board, Lord Steyn

109
Q

Lord Steyn in McFarlane v Tayside Health Board

A

Considers distributive justice, and how ordinary people would not expect such a claim to be allowed given the amount of people who can’t have children at all

110
Q

What judge in McFarlane explored distributive justice?

A

McFarlane v Tayside Health Board

111
Q

Parkinson v St James and Seacroft University Hospital

A

Could claim for additional costs of raising disabled child, but not general costs

112
Q

What case showed courts will allow claim for additional costs of raising a disabled child, but still to McFarlane on general costs?

A

Parkinson v St James and Seacroft University Hospital

113
Q

Cattanach v Melchior

A

Shows HC in Australia struggling on parents’ claim for unintended children - split 4:3 in favour of costs for child

114
Q

What case shows other courts struggle with parents’ claim for unintended children?

A

Cattanach v Melchior, HC in Australia split 4:3

115
Q

What was the consequence of Cattanach v Melchior in Australia?

A

Many states legislatively reversed the result

116
Q

Mulcahy v MoD general

A

Infront of gun, hearing

117
Q

Mulcahy v MoD judgment

A

No DoC as highly detrimental to battlefield operations

118
Q

Infront of gun, hearing

A

Mulcahy v MoD

119
Q

Smith v MoD general

A

Blown up by roadside bombs or friendly fire - equipped

120
Q

Smith v MoD judgment

A

SC decided test needed to be decided in a further case as involved policy considerations inappropriate for court to adjudicate on

121
Q

What did the minority think in Smith v MoD?

A

No DoC after application of Caparo test

122
Q

Blown up by roadside bombs or friendly fire

A

Smith v MoD

123
Q

What case shows the SC being extremely deferential to executive due to policy considerations required in application of Caparo test?

A

smith v MoD

124
Q

What two cases explore application of fair just and reasonable test in soldiers injured in combat?

A

Smith v MoD; Mulcahy v MoD

125
Q

What two cases explore application of fair just and reasonable test in parents’ claim for unintended children?

A

McFarlane v Tayside Health Board; Parkinson v St James and Seacroft University

126
Q

What two cases explore application of fair just and reasonable test in police duty to victims of crime?

A

Hill v Chief Constable of West Yorkshire; Osman v UK

127
Q

Osman v UK general

A

Teacher obsessed with boy, reported, shot father

128
Q

Hill v Chief Constable of West Yorkshire on fair just and reasonable test

A

No because duty would not improve standard of police, and may even lead to detrimentally defensive frame of mind

129
Q

What case rejected application of fair just and reasonable test because may lead to detrimentally defensive frame of mind?

A

Hill v Chief Constable of West Yorkshire

130
Q

Why did the court say no to FJR test in Osman?

A

Same general principles as in Hill

131
Q

What happened in ECtHR in Osman?

A

Violation of Article 6 through use of strike out decision as immunity of police needed to be applied proportionally

132
Q

How can Hill be circumvented under HRA?

A

Breach of section 6 - Article 2 requires police to take positive action if ‘real and immediate risk’

133
Q

What argument went to the ECtHR in Osman?

A

Strike out decision

134
Q

Von Colle v Chief Constable of Hertfordshire judgment

A

No breach of Article 2

135
Q

Von Colle v Chief Constable of Hertfordshire general

A

Murder of prosecution witness by defendant

136
Q

Savage v South Essex Partnership

A

Positive obligation under Article 2 can extend to self-harm

137
Q

Murder of prosecution witness by defendant

A

Von Colle v Chief Constable of Hertfordshire

138
Q

Positive obligation under Article 2 can extend to self-harm

A

Savage v South Essex Partnership

139
Q

Z v UK

A

Osman misunderstood DoC test; didn’t need to be proportionate as not immunity, so could apply strike out

140
Q

What case showed ECtHR admitting Osman misunderstood DoC test?

A

Z v UK

141
Q

Smith v Sussex Police general

A

Homosexual ex, messages, injured after report

142
Q

Smith v Sussex Police judgment

A

Majority in HoL said no DoC, applying Hill and Brooks

143
Q

Lord Bingham in Smith v Sussex Police

A

Tried to create new ‘liability principle’, creating DoC when C gives D apparently credible evidence that 3rd party presents a specific and imminent threat to C

144
Q

What principle was attempted to be created in Smith v Sussex Police, and by who?

A

Lord Bingham, liability principle

145
Q

Nolan on liability principle of Bingham from Smith v Sussex Police

A

‘Imminent’ is too uncertain and overly fact-dependent test

146
Q

Lord Brown in Smith v Sussex Police

A

Concern over distortion of police performance by finding DoC, causing neglect in non-DoC areas

147
Q

What judge in Smith showed concern over distortion of police performance by finding DoC?

A

Lord Brown

148
Q

burton on Smith v Sussex Police’

A

‘licence for the police to continue to fail victims of crime generally and victims of domestic violence in particular’

149
Q

Who said that Smith v Sussex Police gives a ‘licence for the police to continue to fail victims of crime generally and victims of domestic violence in particular’?

A

Burton

150
Q

L&O on Burton’s criticism of Smith v Sussex

A

No blanket immunity and may still owe DoC if police have assumed a responsibility

151
Q

Michael v Chief Constable of South Wales general

A

Violent ex-bf, phone with 60, dead in 15

152
Q

Michael v Chief Constable of South Wales judgment

A

Hill principles still apply - SC emphasised that here there was a failure to act, where it is harder to prove there is a DoC

153
Q

What case showed the SC emphasising a failure to act, and suggesting it is harder to prove a DoC in such circumstances?

A

Michael v Chief Constable of South Wales

154
Q

Lord Kerr’s dissent in Michael v Chief Constable of SW

A

Test is based on judicial intuition so should be more responsive to contemporary perceptions

155
Q

Who argued in what case that FJR test is based on judicial intuition so should be more responsive to contemporary perceptions?

A

Michael v Chief Constable of SW, per Lord Kerr

156
Q

Brooks v Commissioner of Police for the Metropolis general

A

Friend of Stephen Lawrence, mental illness

157
Q

Brooks v Commissioner of Police for the Metropolis judgment

A

DoC not owed - anxiety over Osman decision despite Z v UK, but still reaffirming central holding in Hill

158
Q

What case shows the HoL experiencing anxiety after Osman decision on proportionality?

A

Brooks v Commissioner of Police for the Metropolis

159
Q

Through what section does the HRA have horizontal effect?

A

Section 6 - courts make decisions compatible with Convention

160
Q

How is there vertical effect through HRA?

A

Imposes obligations directly on public authorities through section 6

161
Q

LJ Arden on development of common law and Convention

A

Development only when ‘appropriate for domestic law reasons’

162
Q

Who said common law only develops in line with Convention when ‘appropriate for domestic law reasons’?

A

LJ Arden

163
Q

Smith v Chief Constable of Sussex on common law and ECHR

A

HoL believe two could exist in parallel, rather than extending former to remedy a breach of the convention

164
Q

What two reasons were given in Smith v Chief Constable for common law and ECHR existing in parallel?

A

Osman test is more stringent than negligence, and the two serve different purposes

165
Q

What judge in Smith v Chief Constable said common law and ECHR serve different purposes?

A

Lord Brown

166
Q

Why does it matter that Osman test is more stringent than negligence, according to Smith v Chief Constable?

A

If CL were extended to remedy Convention, it would expand liability further for Convention rights than recognised by ECHR

167
Q

What did Lord Brown in Smith v Chief Constable believe the purpose of HRA is?

A

Vindicate rights

168
Q

What did Lord Brown in Smith v Chief Constable believe the purpose of common law tort is?

A

To compensate

169
Q

What academic argues private law duties like a DoC can only be correlative to a right possessed by C?

A

Stevens

170
Q

What is the rights-based approach to negligence?

A

private law duties like a DoC can only be correlative to a right possessed by C

171
Q

what approach to negligence does Stevens advocate?

A

Rights-based approach

172
Q

What judge in what case supported a change in emphasis in DoC from consideration of a duty to consideration of breach?

A

Lord Bingham in D v East Berkshire Community

173
Q

What argument of Bingham’s was rejected by the majority in D v East Berkshire Community?

A

Change in emphasis in DoC from consideration of duty to consideration of breach

174
Q

Who believes Macmillan’s first draft would have been given as the final speech had the date of delivery of the judgment not been pushed back?

A

Lord Alan Rodger

175
Q

Who would Macmillan’s first draft in Donoghue have appealed to and why?

A

Scottish academics who believe judges concentrate too much on English authority

176
Q

Why does Lord Rodger believe Macmillan and Atkin both refer to the American case of MacPherson?

A

Academic influence - Boehlen’s article, led to the article by Goodhart

177
Q

What author does Lord Rodger believe wrote an article that introduced Macmillan and Atkin to the American case of Macpherson in Donoghue?

A

Boehlen

178
Q

Who else does Lord Rodger believe Atkin convinced to change emphasis from Scottish to English law in Donoghue?

A

Lord Thankerton

179
Q

What argument of Denning’s does Lord Rodger reject?

A

Atkin persuaded them to reach the result - only persuaded them to apply the result to English law too

180
Q

what does Denning argue about the judgments of Lord Thankerton and Macmillan in Donoghue?

A

Atkin persuaded them to reach the result they did, rather than just persuading them to change emphasis from Scottish to English law

181
Q

Who called the three majority judges in Donoghue ‘the celtic majority’

A

Lord Alan Rodger

182
Q

How did Lord Alan Rodger describe the majority judges in Donoghue?

A

‘the celtic majority’

183
Q

What academic highlights convergence of negligence and human rights law is undesirable because they perform different functions?

A

Nolan

184
Q

What two arguments for convergence does Nolan argue against ?

A

Functional equivalence argument and fundamental rights argument

185
Q

What is the functional equivalence argument on convergence?

A

Human rights and negligence perform the same functions

186
Q

What is the fundamental rights argument on convergence?

A

Human rights are more fundamental than tort law

187
Q

What academic argues there is ‘no need to introduce major changes into tort law’ because it can exist in parallel with HRA?

A

Jones

188
Q

What argument in Smith v Chief Constable of Sussex does Nolan reject?

A

Functional separation argument, saying Convention vindicates rights and tort compensates

189
Q

How does Nolan argue against the functional equivalence argument, whilst still rejecting the functional separation argument in Smith?

A

He sees Convention as giving a right good against the state, and tort (private law) as giving a right good against all

190
Q

Lord Bingham in R (Greenfield) v SoS for the HD

A

HRA is not a ‘tort statute’ and it has ‘different and broader objects’

191
Q

What judge in what case supported Nolan’s argument against functional equivalence, and how?

A

Bingham in R (Greenfield) v SoS for the HD - HRA is not a ‘tort statute’ and has ‘different and broader objects’

192
Q

What two general points does Nolan give to argue against functional equivalence of Convention and negligence?

A

Different limitation periods and alien public law concepts like proportionality

193
Q

What does Nolan argue about the fundamental rights argument of Convention?

A

Private law rights could be argued to be more fundamental as they are universal and have a longer history

194
Q

Who thought private law rights could actually be argued to be more fundamental than private law because universal and longer history

A

Nolan

195
Q

What fundamental basis of the law of negligence does Nolan believe convergence with Convention would undermine?

A

Distinction between acts and omissions

196
Q

Gorringe v Calderdale

A

Public authority not liable in negligence for failing to confer a benefit unless private party would also be liable

197
Q

What authority does Nolan believe would need to be overruled to allow convergence with Convention in negligence?

A

Gorringe v Calderdale, to remove distinction between acts and omissions

198
Q

What does Nolan argue about the difference in the fault test between negligence and Convention?

A

Positive obligation under Article 2 and 3 is similar to negligence, but maybe more difficult under Convention (Lord Phillips in Savage)

199
Q

What judge in what case suggested standard of reasonableness under Osman (Convention) is ‘much more stringent’ than under negligence?

A

Lord Phillips in Savage

200
Q

What three core distinctions does Nolan point to in Article 8 between Convention and negligence?

A

Puts burden on state to justify intervention, ‘necessity’ does not mean reasonable but pressing social need and significance attached to procedural failure where they may not be in tort

201
Q

Handyside v UK

A

Article 8 ‘necessity’ means pressing social need, not reasonable

202
Q

Lord Brown in Van Colle on causation under the Convention

A

‘Looser approach’

203
Q

What judge in what case saw causation under the Convention to be a ‘looser approach’ than in negligence?

A

Lord Brown in Van Colle

204
Q

How does Nolan describe the difference in causation test under Convention and tort?

A

Negligence is a ‘but for’ test, but Convention needs reasonable measures ‘could have had a real prospect of altering the outcome’

205
Q

What does Nolan believe about the difference in the scope of protection under Convention and negligence?

A

‘Victim’ under Convention is broad and flexible, but not always mirrored in negligence

206
Q

What case does Nolan point to in order to show that the scope of protection under Convention can be a lot broader than in negligence?

A

In Savage the daughter would have lacked standing in negligence as not considered a ‘victim’

Law Second Year (62 decks)

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