2: Negligence I

Question 1

Explain breach of duty - ‘Standard of Care’

Answer 1

• The conduct must constitute negligence
• To breach a duty the conduct must have been voluntary. Waugh v James K Allan Ltd
• Duty is breached when conduct ‘falls short’ of the standard of care
• The standard is objective, the standard is that of the ‘ordinary reasonable person in the circumstances of the defender’
• The standard varies with the degree of risk: “There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved.” per Lord MacMillan, Muir v Glasgow Corporation

Question 2

Example where standard of care may differ

Answer 2

• Experienced driver v learner driver
• Other road users and pedestrians are entitled to expect different from each
• learner drivers can be held liable for negligence if they fail to meet the standard of care expected of a reasonably competent driver, even if they are still in the process of learning.
• Nettleship v Weston

Question 3

Who’s responsibility is it to establish the standard of care that ought to have been taken

Answer 3

the pursuer
- needs to be able to recognise how they have allegedly been at fault

Question 4

What factors must the pursuer consider when establishing standard of care that ought to have been taken

Answer 4

• Risk/probability of accident occurring
• Magnitude of possible harm
• ‘Reasonable’ precautions
• The standard varies with
  (i) the probability of injury and
  (ii)potential magnitude of harm if injury occurs

Question 5

What would be considered to be reasonable precautions

Answer 5

• What is reasonable? e.g cease an activity altogether,or until matters or resolved?
• Change to ‘riot training’ –would it be realistic, would it put trainees at disadvantage? - Brisco v Secretary State for Scotland 1997 S.C. 14
• Risk of exposure to relatively ‘small’ danger – should a factory be closed down completely?
• Allowing ‘lone working’ –where there is a foreseeable risk; negligence on part ofemployer?

Question 6

Explain ‘setting the standard’

Answer 6

• Setting the standard: What did the defender not do that he ought/ what did the defender do that he ought not, to comply with the duty?
• Is there an expectation that children be watched 100%?
• Standard of care? Foreseeability?
• Supervising children of different ages on a bouncy castle
• If undertaking to look aftersomeone’s child, but left to own devices

Question 7

What if there is a common/usual practice?

Answer 7

• Should this be followed?
• If it is not adopted - is this proof of Negligence?
• If there is a common practice toprovide barrier cream
• But an ‘alternative’ provision ismade……
• Has an employer done what a‘reasonable’ employer would havedone?

Question 8

Describe causation

Answer 8

The onus is on the pursuer to prove that the breach of dutycaused the harm complained of

This involves mixed questions of fact and law

• Fact – what causal connection existed between the breach of duty and the harm complained of?
• Law – was the original act of negligence an effective cause of the resultant harm?
• BOTH NECESSARY for causation

A causal connection cannot be assumed; it must be proved, or atleast be able to be inferred from the facts

Question 9

Describe factual causation (causa sine qua non)

Answer 9

• What causal connection existed between the breach of duty and the harm complained of?
• In essence, it asks whether the outcome would have occurred “but for” the defendant’s action or event. It seeks to establish a direct link between the defendant’s conduct and the resulting harm. If the harm would not have occurred in the absence of the defendant’s action, then the defendant’s action is considered to be the factual cause of the harm.

Question 10

Describe legal causation (causa causans)

Answer 10

Was the original act of negligence an effective cause of the resultant harm?
Whether or not the breach of duty is the causa causans will be determined primarily on the issue of foreseeability flowing from the original wrongful act/omission

• Immediate, dominant or effective cause

Question 11

Describe a new intervening act (Novus actus interveniens)

Answer 11

“To break the chain of causation it must be something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic. I doubt whether the law can be stated more precisely than that.” Per Lord Wright, The Oropesa 1943 1 All ER 211

Question 12

What is meant by remoteness

Answer 12

• There may be breach of duty, but the claim (or part of it) may be ‘too remote’ from the breach
• Remoteness of damage is connected with the extent of liability (reparation)