5- Negligence: personal injury & damage to property Flashcards
What has to be proved in a negligence claim?
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
What is the idea of a duty of care in the tort of negligence?
To establish a legal relationship between C and D
Which case did the modern law of negligence originate from?
Donoghue v Stevenson (1932)- established for 1st time the broad principle of when a duty of care is owed- the NEIGHBOUR PRINCIPLE
What is the Neighbour Principle?
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.
What is the 3-part-test and where was it set out?
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)
3PT: Damage or harm reasonably foreseeable? Key case included
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)
3PT: Proximity of relationship. Key case included
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)
3PT: Fair, just and reasonable to impose a duty. Key case included
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.
3PT: When are courts often reluctant to find that it’s ‘fair, just and reasonable’ to impose a duty of care? Key case included
When the duty of care is being imposed on public authorities such as police.
KEY CASE: Hill v Chief Constable of West Yorkshire (1990)
What must C prove once it has been shown that a duty of care is owed?
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’.
What is meant by the ‘reasonable person’ when proving a breach of the duty of care?
The ordinary person in the street or doing a task.
What variations of the ‘reasonable person’ are there which the court will consider?
- Professionals
- Learners
- Children & young people
Reasonable person: Professionals- KEY CASE included
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?
Reasonable person: Learners- KEY CASE included
At the standard of the competent, + experienced person.
This principle set by Nettleship v Weston (1971)
Reasonable person: Children- KEY CASE included
Standard is that of a reasonable person of D’s age at the time of the accident.
Illustrated by Mullin v Richards (1998)
What will the court take into account when considering a breach of duty that will raise or lower the standard of care?
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)
What must C prove once it has been shown that a duty of care is owed & that it has been breached?
C must prove that the loss/damage suffered:
1. was caused by the breach of duty 2. was not too remote
What is damage? How is it different to damages?
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
What are the 2 parts to damage?
- Causation
- idea that breach of duty has caused the injury/damage claimed for: FACTUAL CAUSATION
- Remoteness of damage
Both need to be proved for a negligence claim to be successful
Damage: Causation- what is the starting point for causation? How is it decided?
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)
Damage: Causation- How can the chain of causation be broken?
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.
Damage: Remoteness of damage- From which case does this rule come from? What is the test that comes with it?
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
Damage: Remoteness of damage- What must be reasonably foreseeable? Which cases illustrate this?
The type of injury, not the precise way in which it happened.
- Hughes v Lord Advocate (1963)- Consequence foreseeable even if exact cause of injury not foreseeable.
- Bradford v Robinson Rentals (1967)- Consequence foreseeable, even if + severe
- Doughty v Turner Asbestos (1964)- Consequence not known so injury not foreseeable
Damage: Remoteness of damage- What is the ‘eggshell rule’? KEY CASE included
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)
