1. Negligence

Question 1

tort

Answer 1

civil wrong

Question 2

negligence

Answer 2

covers situations where people suffer personal injury and/or damage to property

Question 3

criteria for negligence

Answer 3

1) D owed C a duty of care
2) D breached duty of care
3) breach caused loss or damage to C

Question 4

criteria for duty of care

Answer 4

• neighbor principle
• Caparo test
• Robinson test

Question 5

explain neighbour principle

Answer 5

Donoghue v Stevenson (snail in beer)

Lord Atkin:
“you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

neighbour: “persons who are so closely and directly affected by my act that i ought reasonably to have them in my contemplation”

Question 6

explain Robinson test

Answer 6

where there is already an established duty of care, the Caparo test is unnecessary and inappropriate

only use Caparo in new/novel situations

Question 7

examples of established categories

Answer 7

manufacturer-consumer (Donoghue v Stevenson)

doctor-patient (Sidaway)

nurse-patient (Barnett)

road user - other road users/pedestrians/passengers (Nettleship v Weston)

teacher-pupil: nursery (Carmarthenshire CC v Lewis)

teacher-pupil: older children (X (minors) v Bedfordshire CC)

transport operators-passengers (Silverlink Trains v Collins-Williamson)

custodian-prisoner (Ellis v HO)

Robinson: includes similar situations eg physiotherapist-patient

Question 8

criteria for Caparo test

Answer 8

1. reasonable foreseeability of damage/harm
2. proximity between C and D
3. fair, just, reasonable to impose duty

Question 9

explain Caparo: reasonable foreseeability

Answer 9

is it reasonably foreseeable that Ds acts/omissions will cause loss/damage to C

objective test

a reasonable person would have foreseen SOME damage

Kent v Griffths (ambulance took too long)

Question 10

explain Caparo: proximity

Answer 10

must be sufficiently reasonable connection between C and D

through:
- physical presence: time and space (Bourhill v Young)
- relationship (McLoughlin v OBrian)

Question 11

explain Caparo: fair, just, reasonable

Answer 11

courts reluctant to impose duty for public authority public policy reasons: it would open the floodgates of litigation (Hill v CC of West Yorkshire)

BUT, where the authority has through their own actions created a new danger or substantially increased the risk of an existing danger, the courts are more likely to hold that it is FJ+R (Capital & Countries plc v Hampshire CC)

Question 12

criteria for breach of duty

Answer 12

(1) standard of care (reasonable man test)

(2) fallen below standard (risk factors)

Question 13

explain breach of duty: standard of care

Answer 13

SOC is that of the reasonable man (Blythe v Birmingham Waterworks)

reasonable man is the ordinary person performing the task: he is expected to do so competently

diff categories of defendants: diff standards

• professional D: standard of reasonable and competent professional in the same field (Bolam v Friern Hospital)
• medical professional D: standard of reasonable and competent medical professional performing same task (Montgomery v LHB)
  
  • Bolitho v City & HHA: court should enquire whether a medical practice can be justified on basis of relevant risks and benefits
• children: standard of reasonable and competent children of that age (Mullin v Richards)
• learners: NOT CONSIDERED ; if D is a trainee or inexperienced, held to standard if any reasonable/competent qualified/experienced person carrying out same task (Nettleship v Weston)

Question 14

explain breach of duty: fallen below standard

Answer 14

court applies risk factors to determine if D behaved reasonably OR if D fell bellow the expected standard

(a) size/magnitude of risk: the greater the risk, the greater the expected SOC (Bolton v Stone)
- Roe v MoH: reasonable man can’t be expected to know and protect against risks that aren’t yet known scientifically

(b) special characteristics of C: if C is more vulnerable (known to defendant) SOC is raised (Paris v Stepney BC)

(c) practicality of taking precautions: reasonable man expected to do all he reasonably can to prevent harm - weigh the risk against the cost/convenience of eliminating it (Latimer v AEC)

(d) social/public utility: lower SOC when reacting to an emergency/preventing a greater harm for benefit of public (consistent with FJR part of DOC) (Watts v Herts)

Question 15

criteria for breach causing damage

Answer 15

• factual causation
• legal causation (remoteness)

Question 16

explain breach causes damage: factual causation

Answer 16

(1) but for test (Barnett v Chelsea & KH)
- but for Ds breach , damage wouldn’t have occurred

(2) multiple causes: if several possible causes, C must show that Ds negligence is more likely to be the cause than all the others put together (Wilsher v EHA)

(3) intervening acts: chain of causation can be broken
- nature (Carslogie)
- actions of 3rd party (Knightley)
- actions of C (McKew)

Question 17

explain breach causes damage: legal causation/remoteness

Answer 17

(1) D liable for all consequences that were reasonably foreseeable, but not that were too remote (The Wagon Mound (No1))

(2) foreseeability of type of damage: as long as some related type of damage is foreseeable, not too remote (Bradford v Robinson Rentals)

(3) foreseeable damage happens in an un foreseeable way: as long as damage is foreseeable it doesn’t matter if it happens in an unforeseeable way (Hughes v Lord Advocate)

(4) egg shell rule/think skull rule: D must take C as he finds him (Smith v Leech Brain)