2B - Negligence Flashcards
What did Lord Atkin say about 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’
Neighbour being ‘persons who are so closely and directly affected by my acts that I ought to reasonably have them in contemplation’
What 3 elements must be present for a successful negligence claim?
- A duty of care must be owed by the defendant to the claimant
- The duty of care must have been breached by the defendant
- The breach of duty by the defendant must have caused damage
Step 1: Duty of care: Caparo v Dickman test
Foreseeability
Proximity
Policy
Step 1: Duty of care: Caparo v Dickman test: Foreseeability meaning
It is reasonably foreseeable that a person would suffer damage or some harm if in C’s position?
This is an objective test
Don’t have to prove ‘the’ harm, just ‘some’ harm
Step 1: Duty of care: Caparo v Dickman test: Proximity meaning
Is there proximity between the C and D?
- means closeness and in terms of nearness in space, time, OR relationship
Relationship only included professional relationships
Step 1: Duty of care: Caparo v Dickman test: Policy meaning
Is it fair, just, and reasonable to impose a duty on the defendant?
Step 1: Duty of care: Caparo v Dickman test: Foreseeability Case
Kent v Griffiths
Step 1: Duty of care: Caparo v Dickman test: Proximity Cases
Leading case (space): Bourhill v Young Failed - not a proximate relationship as she only heard the accident but didn't actually see it
Further case (time) : McLaughlin v O'Brian Allowed - only so many people can say 'it's my husband and kids' and suffered harm 2 hours after the event
Step 1: Duty of care: Caparo v Dickman test: Policy - public policy
Fair, just, and reasonable is sometimes discussed under the heading ‘public policy’.
Generally, courts don’t want to impose an unreasonable burden on police officers, social workers, etc who carry out difficult jobs by making them worried that a mistake could lead to a negligence claim
Not a public authority = not fair, just and reasonable
Step 1: Duty of care: Caparo v Dickman test: Policy case
Hill v CC West Yorkshire
Step 1: Duty of care: Caparo v Dickman test: Policy - what did Hill v CC West Yorkshire suggest
Indicated that ‘blanket immunity’ existed at least for the police and that generally the police do not owe a duty of care when executing their duties
Step 1: Duty of care: Caparo v Dickman test: Policy - what do judges take into account when considering public policy issues?
- whether the floodgates of litigation would open
- whether imposing a duty would have a deterrent value
- whether the defendant is a public authority (eg police)
- protecting professionals, such as police
Step 1: Duty of care: Caparo v Dickman test: Policy - since Hill v CC West Yorkshire what has happened?
There have been many cases showing that a blanket immunity from being sued no longer exists for the police and public authorities
Step 2: Breach of duty: elements
- courts must decide what standard the defendant should have reached
- courts decide balancing various risk factors, if that standard was reached
Step 2: Breach of duty: the standard - what is the standard
the defendant’s conduct is tested against the standard of care which could be expected of a reasonable person doing the same activity
Step 2: Breach of duty: the standard - which case set out the standard?
Blyth v Birmingham Waterworks
Step 2: Breach of duty: the standard - what was the ratio set out in Blyth v Birmingham Waterworks?
Negligence is the omission to do something which a reasonable man would do, or doing something that a reasonable man would not do
Step 2: Breach of duty: the standard - learners
Learners are treated no differently than those with experience. They will be expected to meet the standard of a reasonable person
Step 2: Breach of duty: the standard - learners: case
Nettleship v Weston
Step 2: Breach of duty: the standard - children
Expected to meet the standard of a reasonable child their age
Step 2: Breach of duty: the standard - children: case
Mullin v Richards
Step 2: Breach of duty: the standard - professionals
Expected to meet the standard of the reasonable professional in the same profession
Step 2: Breach of duty: the standard - professionals: case
Bolam v Friern Hospital
Step 2: Breach of duty: the standard - professionals: warnings and consent
Montgomery v Lanarkshire Health
Step 2: Breach of duty: what are the risk factors?
- Potential likelihood of harm
- Potential seriousness of harm
- Cost and practicality
- Social benefit
Step 2: Breach of duty: risk factors - potential likelihood of harm
The more likely the harm, the greater the precautions the defendant must take
Step 2: Breach of duty: risk factors - potential likelihood of harm: case
Haley v London Electricity Board
Step 2: Breach of duty: risk factors - potential seriousness of harm
SPECIAL CHARACTERISTICS ONLY
If the C has any special characteristics that makes the potential harm worse then the defendant must take greater precautions
Step 2: Breach of duty: risk factors - potential seriousness of harm: cae
Paris v Stepney Borough Council
Step 2: Breach of duty: risk factors - cost and practicality
D must only take the precautions that are in proportion to the size and seriousness of the risk
Step 2: Breach of duty: risk factors - cost and practicality: case
Bolten v Stone
Step 2: Breach of duty: risk factors - social benefit
Where there is a public benefit to taking the risk there can be less precautions taken
Step 2: Breach of duty: risk factors - social benefit: case
Watt v Herts CC
Step 3: Damage: elements
The ‘damage’ could be injury to a person or damage to property
- Factual causation (‘but for’ test)
- Legal causation (‘remoteness’ test, intervening acts, thin skull rule)
Step 3: Damage: factual causation
‘But for’ the actions of the defendant, would the harm or damage to the claimant have occured?
Step 3: Damage: factual causation - case
Barnett v Kensington and Chelsea Hospital
Step 3: Damage: legal causation - remoteness test
focuses on whether the type of damage to the claimant was reasonably foreseeable as a result of the defendant’s actions
If its not reasonably foreseeable = too remote
Step 3: Damage: legal causation - remoteness test: case
Wagon Mound No.1
Step 3: Damage: legal causation - what happens after establishing the damage was reasonably foreseeable?
It does not matter that the type of damage occurred in an unusual way or to a greater extent than expected, the defendant is still liable
Step 3: Damage: legal causation - what happens after establishing the damage was reasonably foreseeable: cases
Bradford v Robinson Rentals (lorry driver in the cold)
Hughes v Lord Advocate (boy and paraffin lamp)
Step 3: Damage: legal causation - intervening acts
Unlikely to come up in the exam
Based on the idea of foreseeability and therefore is the same as criminal law
Step 3: Damage: legal causation - intervening acts: case
Scott v Shepherd (fireworks)
Step 3: Damage: legal causation - thin skull rule
Defendant must take the claimant as he finds him
Step 3: Damage: legal causation - thin skull rule: case
Smith v Leech Brain
