3 - Negligence

Question 1

When may a duty of care already exist?

Answer 1

between a doctor and patient or road users ect

Question 2

What tests are used to decide if a duty of care should be imposed?

Answer 2

The neighbour principle (donoghue v stevenson) the old test!!

The caparo test (caparo v dickman)

Question 3

What is the neighbour principle?
(the old test)

Answer 3

you must take reasonable care to avoid acts and omissions that you can reasonably foresee is likely to injure your neighbour

Question 4

When is the Caparo test used?

Answer 4

If there is no other similar case that can be used

Question 5

Caparo test

Answer 5

1 - Damage must be reasonably foreseeable (objective test)
2 - there must be proximity (time, space, relationship ect)
3 - Must be fair, just and reasonable to impose a duty

Question 6

When is it NOT ‘fair, just and reasonable’ to impose a duty?

Answer 6

1 - when it places unnecessary strain on the services
2 - when it opens the floodgates for other claims

Question 7

Jolley v Sutton 2000

Answer 7

‘reasonably foreseeable that a child will be injured by a boat left abandoned in a park

Question 8

Donoghue V stevenson (1932) (case)

Answer 8

The neighbour principle
snail found in ginger beer

Question 9

Caparo V Dickman 1990

Answer 9

Shares were misvalued leading to economic loss

Question 10

Hill v chief constable west Yorkshire 1988

Answer 10

There must be proximity
C sued police over the killing of her daughter who was killed by serial killer.
(can also be used as an example for ‘fair just and reasonable’)

Question 11

Definition of breach of duty (blyth v brimingham waterworks 1856)

Answer 11

ommiting to do something a reasonable man would do or doing something a reasonable man would not

Question 12

What is the expectation to the objective test of breach of duty?

Answer 12

knowledge of the person may be added
professionals are judged against reasonable professionals
a child is judged against a reasonable child (Mullin v Richards 1998)
trainees will not be judged in the same way (Nettleship v Weston)

Question 13

Mullin v richards 1998

Answer 13

a child is judged against a reasonable child
Two girls fighting and a ruler snapped and caused another girl to go blind

Question 14

Nettleship v Weston

Answer 14

D was a learner who injured her driving instructor (trainees are not judged as someone who knows how to do a task)

Question 15

Factors deciding if they acted reasonably?

Answer 15

1 - degree of risk (the greater the risk, the greater the precautions that the D must take)
2 - the cost of precautions (the courts do not expect the cost of precautions to outweigh the risk, there is no need to take excessive measures)
3 - the potential of serious injury (the more serious the injury, the greater level of care required)
4 - the importance of the activity (some risks may be accepted if the risk is socially important)

Question 16

Latimer V AEC 1952

Answer 16

The d had mopped up, put out sawdust and signs to prevent slips on the wet floor - the courts do not expect the precautions to outweigh the risk involved

Question 17

damage must be -

Answer 17

1- caused by the breach of duty - wouldnt have occurred ‘but for’ the breach
2 - not too remote - damage must be of a forseeable type

Question 18

Barnette v chelsea hospital 1969

Answer 18

doctor failed to examine a man who had been poisoned - causing the man to die when he could have been saved
damage must have been caused by the breach

Question 19

The wagon mound 1961

Answer 19

ship leaked oil into the harbours which led to a fire, destroying the claimants wharf and boats
Damage must be of a foreseeable type