2.1 Negligence Overview

Question 1

What are the elements needed to satisfy the tort of negligence?

Answer 1

• Duty of Care
• Breach of the duty of care
• Factual and legal causation: Causation in fact, causation in law (remoteness of damage)

1. Did D owe C a duty of care?
2. Was D in breach of that duty?
3. Did D’s breach of duty cause damage to the claimant? - Look at causation, remoteness and loss here!!
4. Are any defences available to D?

Question 2

What is the Neighbour Principle?

Answer 2

From Donoghue v Stevenson:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

Question 3

For novel situations where a duty of care is not established, what can the court do?

Answer 3

Caparo test - the law taking an incremental step by analogy.

Question 4

What are the elements in the Caparo test?

Answer 4

1. Reasonable Foreseeability - is it reasonably foreseeable that D’s actions will affect C?
2. Proximity - What is the relationship between C and D?
3. Fair, just and reasonable - Is it fair, just and reasonable to impose a duty?

Question 5

What are some examples of established duty situations?

Answer 5

One road user to another
Doctor to patient
Employer to employee
Manufacturer to consumer
Tutor to tutee
Teacher to pupil

Question 6

What is the principle concerning liability for omissions to act?

Answer 6

There is no duty for omissions. However, there is a duty not to make matters worse.

Exceptions: special relationship, contractual duty

Question 7

What is a breach of a duty of care?

Answer 7

D fails to come up to the standard required by law for fulfilling the duty.

Breach of duty must be proved by C ‘on a balance or possibilities’

Question 8

What considerations are given for standard and degree of care when determining breach of duty of care?

Answer 8

Standard of Care (Q of L) - Objective test, based on the hypothetical reasonable person. Note ‘special standards’ - linked to the position the defendant holds.

Special standards - D has a particular skill / child / suffers from a disability

Degree of Care (Q of F) - Size and likelihood of risk created by D’s activities + cost and the practicalities of precautions

Question 9

What are some examples of policy considerations that judges may take into account when reaching decisions?

Answer 9

‘Floodgate’ argument
Deterrence of a certain type of behaviour
Resources
Public Benefit
Rule of Law

Question 10

Define the tort of negligence

Answer 10

A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant.

Law provides compensation for harm caused by carelessness.

Question 11

How do we determine causation in negligence cases?

Answer 11

Factual causation - ‘But for’ test - but for D’s breach of duty, would the harm to C have occurred?

Legal causation - Act/omission by D should be linked to loss or damage suffered by C. Has the chain of causation been broken (Q of F)? Novus Actus Interveniens

Question 12

Explain what is meant by ‘novus actus interveniens’

Answer 12

Intervening Acts:
- By Third Party (negligent intervention can break cause of causation, not an instinctive intervention)
- By Claimant (claimant has to be entirely unreasonable in all the circumstances)

Question 13

How do we determine remoteness of damage in a negligence case?

Answer 13

Damage is too remote if it was not reasonably foreseeable as a consequence of D’s actions. The type of harm suffered needs to be foreseeable.

*N.B egg shell skull rule

Question 14

For remoteness of damage, what is the ‘similar in type’ rule?

Answer 14

Where the type of harm suffered is foreseeable, it is not necessary the precise way in which the harm was caused

Question 15

For remoteness of damage, what is the ‘egg-shell-skull’ rule?

Answer 15

You take your victim as you find him. Provided the type of damage was reasonably foreseeable, D is liable for the full extent of the harm, even if the precise extent of D was not foreseeable

Question 16

What important factors must be considered when thinking about negligence?

Answer 16

Remember:
- Look out for children or skilled defendants, as the standard applied to them will vary from those applied to the reasonable person.
- Be wary of vulnerable claimants and the application of the thin skull rule.
- Has there been a novus actus?

When considering psychiatric harm, look at relationships between the injured and a secondary victim.

When considering remedies, consider what is appropriate in the circumstances.

Question 17

What is an important consideration when thinking about psychiatric harm?

Answer 17

It is more difficult for a claimant to succeed in a negligence claim when they have suffered psychiatric harm as compared with claims for personal injury and / or property damage.

(Floodgates argument with duty of care). With a claim for psychiatric harm, there are additional elements that a claimant must prove.

Question 18

What is a recognised psychiatric illness?

Answer 18

Depression, Post-Traumatic Stress Disorder, Mental Health Condition.

A claim for mere grief, anxiety or sadness of a kind normally experienced as part of everyday life will not give rise to potential liability.

Question 19

What are the principles for when a primary victim has suffered a recognised psychiatric illness?

Answer 19

Primary victim - somebody who is directly involved in the event or accident, physically harmed by accident or put at risk of some physical harm.

If claimant can show that it was reasonably foreseeable that D’s actions might have caused them physical harm, it will not matter that psychiatric harm would not have been foreseeable.

N.B: A rescuer may be classified as a primary victim if they are exposing themselves to danger or reasonably believe that they are doing so.

Question 20

What is the criteria to establish for a secondary victim with a claim for psychiatric harm?

Answer 20

Secondary victim - somebody who suffers psychiatric harm by witnessing an event that either causes, or threatens to cause, death or injury to someone else.

They will only be able to recover if psychiatric harm was reasonably foreseeable in a person of ordinary fortitude. A number of strict additional criteria must be met.

Question 21

What is the key additional criteria that a secondary victim needs to establish?

Answer 21

Alcock criteria:

1) A close tie of love and affection - for parents, children and spouses, this is presumed. In any other case, the relationship must be established on the evidence.

2) Proximity in time and space - Claimant must have perceived the event or its immediate aftermath with their own unaided senses

3) The means by which the shock is caused - the psychiatric harm must be caused by shock which must be sudden and immediate.