5- Negligence: personal injury & damage to property

Question 1

What has to be proved in a negligence claim?

Answer 1

1) Duty of care
a) reasonably foreseeable harm
b) proximity between the parties
c) fair, just and reasonable to impose duty

2) Breach of duty
- D falls below standard of care appropriate to the degree of risk

3) Damage caused
a) D’s breach causes damage
b) damage is reasonably foreseeable

= liability in negligence

Question 2

What is the idea of a duty of care in the tort of negligence?

Answer 2

To establish a legal relationship between C and D

Question 3

Which case did the modern law of negligence originate from?

Answer 3

Donoghue v Stevenson (1932)- established for 1st time the broad principle of when a duty of care is owed- the NEIGHBOUR PRINCIPLE

Question 4

What is the Neighbour Principle?

Answer 4

Test for when a person owes a duty to another.

According to Lord Atkin, a ‘neighbour’ is anyone you ought to have in mind who might potentially be injured by your act/omission.

This principle used by judges for a nº of years until it became clear that it was not sufficient to deal with new situations that came before the courts.

Question 5

What is the 3-part-test and where was it set out?

Answer 5

Update of the neighbour test to show who is owed a duty of care in negligence. All 3 parts need to be satisfied in order for the test to be satisfied.

 1) was damage or harm reasonably foreseeable?
 2) is there a sufficiently proximate relationship between C and D?
 3) is it fair, just, and reasonable to impose a duty?

Set out by HoL in Caparo v Dickman (1990)

Question 6

3PT: Damage or harm reasonably foreseeable? Key case included

Answer 6

This is where a reasonable person could foresee that damage or injury could be caused to another person by their actions or omissions.

Whether injury or damage is reasonably foreseeable depends on facts of the case.

KEY CASE: Kent v Griffiths (2000)

Question 7

3PT: Proximity of relationship. Key case included

Answer 7

Even if harm is reasonably foreseeable, duty of care will only exist if relationship between C and D is sufficiently proximate- this can be considered as the neighbour test.

This test applied in-
KEY CASE:
1) Bourhill v Young (1943)- had she been allowed to sue, it would have opened the floodgates to many claims by unrelated strangers.

 2) McLoughlin v O'Brien (1982)

Question 8

3PT: Fair, just and reasonable to impose a duty. Key case included

Answer 8

3rd part of Caparo test allows courts to considered if the law ought to impose a duty of care on D when both the foreseeability and proximity tests are satisfied.

Courts considered what is best for society as a whole.

Also consider whether by allowing a claim, they will be opening the floodgates to many future claims.

Question 9

3PT: When are courts often reluctant to find that it’s ‘fair, just and reasonable’ to impose a duty of care? Key case included

Answer 9

When the duty of care is being imposed on public authorities such as police.

KEY CASE: Hill v Chief Constable of West Yorkshire (1990)

Question 10

What must C prove once it has been shown that a duty of care is owed?

Answer 10

C has to prove the duty of care has been broken by failing to reach the required standard of care. The standard is objective- that of a ‘reasonable person’.

Question 11

What is meant by the ‘reasonable person’ when proving a breach of the duty of care?

Answer 11

The ordinary person in the street or doing a task.

Question 12

What variations of the ‘reasonable person’ are there which the court will consider?

Answer 12

• Professionals
• Learners
• Children & young people

Question 13

Reasonable person: Professionals- KEY CASE included

Answer 13

By the standard of the profession as a whole.

Bolam v Friern Barnet Hospital Management Committee (1957) established a principle for deciding when a professional has breached the duty of care.
Following questions should be asked:
1. Does D’s conduct fall below the standard of the ordinary, competent member of that professions?
2. Would a substantial body of opinion within the profession support the course of action taken by D?

Question 14

Reasonable person: Learners- KEY CASE included

Answer 14

At the standard of the competent, + experienced person.

This principle set by Nettleship v Weston (1971)

Question 15

Reasonable person: Children- KEY CASE included

Answer 15

Standard is that of a reasonable person of D’s age at the time of the accident.

Illustrated by Mullin v Richards (1998)

Question 16

What will the court take into account when considering a breach of duty that will raise or lower the standard of care?

Answer 16

Risk factors:
1. Special characteristics- Paris v Stepney Borough Council (1951)

 2. Size of the risk:
 - where risk is small, it's unlikely that there's a breach of duty- Bolton v Stone (1951): principle that higher the risk of injury, greater the precautions to be taken to prevent the injury.
 - higher risk of injury means the standard of care is higher- Haley v London Electricity Board (1965)

 3. Appropriate precautions- courts will consider balance of the risk against the cost & effort of taking adequate precautions to eliminate the risk- Latimer v AEC Ltd (1953)
 4. Unknown risks- Roe v Minister of Health (1954): if risk of harm is unknown there can be no breach
 5. Public benefit- If there's an emergency greater risks can be taken and a lower standard of care accepted- Watt v Hertfordshire County Council (1954), Day v High Performance Sports (2003)

Question 17

What must C prove once it has been shown that a duty of care is owed & that it has been breached?

Answer 17

C must prove that the loss/damage suffered:

 1. was caused by the breach of duty
 2. was not too remote

Question 18

What is damage? How is it different to damages?

Answer 18

Damage- legal concept that asks the question: has D’s breach of duty led to the injury/property damage suffered by C?

Damages: Payment of compensation

Question 19

What are the 2 parts to damage?

Answer 19

1. Causation
   
   • idea that breach of duty has caused the injury/damage claimed for: FACTUAL CAUSATION
2. Remoteness of damage

Both need to be proved for a negligence claim to be successful

Question 20

Damage: Causation- what is the starting point for causation? How is it decided?

Answer 20

Factual causation. If this cannot be proved, there is no need to consider legal causation.

Decided by the ‘but for’ test: but for D’s act/omission, the injury/damage wouldn’t have occurred.
- Illustrated by Barnett v Chelsea & Kensington Hospital Management Committee (1969)

Question 21

Damage: Causation- How can the chain of causation be broken?

Answer 21

As in crim law, an intervening act (novus actus interveniens) can break it.

Principle to be applied: Whether injury/damage was a reasonably foreseeable consequence of the original act/omission.

Question 22

Damage: Remoteness of damage- From which case does this rule come from? What is the test that comes with it?

Answer 22

In Australian case The Wagon Mound (1961) it was decided that where factual causation is proved it must be shown that damage is not too remote from D’s negligence.

Test for remoteness of damage that comes from case: injury/damages must be reasonably foreseeable- this is the test for LEGAL CAUSATION

Question 23

Damage: Remoteness of damage- What must be reasonably foreseeable? Which cases illustrate this?

Answer 23

The type of injury, not the precise way in which it happened.

1. Hughes v Lord Advocate (1963)- Consequence foreseeable even if exact cause of injury not foreseeable.
2. Bradford v Robinson Rentals (1967)- Consequence foreseeable, even if + severe
3. Doughty v Turner Asbestos (1964)- Consequence not known so injury not foreseeable

Question 24

Damage: Remoteness of damage- What is the ‘eggshell rule’? KEY CASE included

Answer 24

Take your victim as you find them- in negligence ‘eggshell rule’, in crim law ‘thin skull rule’.

If type of damage was reasonably foreseeable but is + serious bc C had a pre-existing condition, D is still liable for the consequences.

KEY CASE: Smith v Leech Brain and Co. (1962)

Question 25

What is ‘Res ipsa loquitur’?

Answer 25

Rule when C doesn’t known exactly what happened even though it’s obvious that D must have been negligent. (Ex: after operation C finds a swab left inside them)

Translates to ‘the thing speaks for itself’.

Question 26

What does C have to prove for the rule of ‘Res ipsa loquitur’ to be proved?

Answer 26

1. D was in control of the situation which caused the injury
2. The accident wouldn’t have happened unless someone was negligent
3. There is no other explanation for the injury

Question 27

What happens if the ‘Res ipsa loquitur’ rule is successful? KEY CASE included

Answer 27

If C can show the 3 points, the burden of proof shifts to D who has to prove that they were not negligent.

KEY CASE: Scott v London and St Katherine Docks (1865)