first part Flashcards
How would you begin the essay -
i.e intro
In order to bring a successful claim of negligence a claimant must prove the following things; a duty of care, a breach of duty and that the breach of duty caused the damage or harm in the case. In this case the claimant is __ and the defendant is ____
How did duty of care used to be established
First we must prove a duty of care between the claimant and the defendant. Duty of care was first established by Lord Atkin in Donoghue v Stevenson which established the neighbour principle. It was then revised in Caparo v Dickman which saw the creation of a 3 part test that was used to prove a duty of care.
Explain the new way of establishing a duty of care
However there was a new way of establishing a duty of care created in Robinson 2018 which looks at precedents set by previous cases for a decision. Reason by analogy is when judges look at the established duty in similar cases and compare them. Many acts of parliament impose a duty of care on a party, these are called statutory duties for example the children act 1989.
What would you do next
Establish if there is a statutory duty i.e. a law between the defendant and claimant or if this has happened in another case or if there is an established duty i.e student and teacher
What would you do after establishing a duty of care
establish a breach of duty
What is the first part of establishing a breach of duty
Next in order to establish a breach of duty of care we must look to the reasonable man test. This is an objective test established in the case of Blyth v Birmingham waterworks company. The reasonable man is someone who is considered to have average skill and knowledge and so we look at if the defendant has acted like the reasonable man would in each case
What are special circumstances
Special characteristics of the defendant are not often taken into account apart from in 3 different circumstances- if they are a learner, professional or a child.
How would you then apply the special circumstances and reasonable man to your case
In this case the defendant does not fit into any of the special characteristics and would therefore be subject to the general reasonable man test.
eg. Arguably ___ did not act in the way a reasonable man would act as he did not consider the safety of other road users as he failed to look when doing a quite dangerous action and in addition the speed he was cycling at made the action even more harmful. A reasonable man of average knowledge would take into consideration the fact
What would be the next thing you would look at to determine if they acted in the way that a reasonable man would have acted and name them
Risk factors-
- the degree of risk
- cost and practicality of taking precautions
- potential seriousness of harm due to special characteristics
- social utility
How many risk factors should you talk about
2 and its normally
cost and practicality of taking precautions- Latimer v afc- factory flooded
likelihood of harm- bolton v stone- cricket ball
What is the next thing that must be discussed and name the 4 parts
Damage-
factual causation i.e but for test
intervening acts
thin skull rule
remoteness of damage
Explain factual causation
This is also known as the “but for” test and it means but for the defendant’s actions would the damage have occurred. This was used in the case of Barnett v Chelsea & Kensington Hospital Management Committee. In this case three night watch men got sick after drinking some tea, they went to see a doctor and the doctor turned them away. The men later died however the doctor was not held liable as it was discovered that they had died from arsenic poisoning and so even if the doctor saw them they would have died regardless. In this case “but for”
Explain remoteness of damage
This is used to decide whether that type of damage is reasonably foreseeable from the defendants actions. This was used in the case of Wagon Mound No 1 in which the defendant essentially caused an oil spill in the wharf; however then welding sparks in contact with the oil set fire to the wharf. This type of damage was deemed to not be reasonably foreseeable as the defendant was not aware of the welding sparks. In this type of case we would expect the damage to be some sort of leg injury such as broken bones. In this case the injury the pedestrian has sustained is reasonably foreseeable because
i.e is the injury what you would expect from that action
What is the thin skull rule and explain the case
the defendant must take their victim as they find them
smith v leech brain- claimant was struck on the lip by molten metal and he had a precancerous skin conditioned later died of cancer after it was triggered by the burn. Company was held responsible- take your victim as you find them. In this case
What are intervening acts and explain the case
If something happens after the incident that makes the situation worse defendant is still responsible unless that act was sufficiently separate and serious to what the d did and breaks the chain of causation eg. lighting strike
knightly v Johns
