General Negligence Flashcards
Definition of General Negligence
The breach of a legal duty to take care, which results in damage, undesired by the defendant to the claimant (Winfield.
A number of situations where a duty of care will always be owed.
Manufacturers and Consumers Doctor and Patient Hospital and Patient Road users Employer and Employee Employee and Employer Referee and Competitor Participants In Sporting Events Coast guards (not to make the situation worse) Ambulance service (to arrive within a reasonable time) Fire service (not to make the situation worse) Police (failure to respond)
Manufacturers and Consumers - general duty
Donoghue v Stevenson
- ginger beer
Doctor and Patient - general duty
Cassidy v MoH
- operation on his hand which resulted in stiff fingers
Road Users - general duty
Nettleship v Weston
- learner driver
Hospital v Patient - general duty
Bill v Devon
Employer v Employee - general duty
Wilson v English
Employee v Employer - general duty
ICI v Shatwell
- employees using wire which was too short for explosions
Referee v Competitor - general duty
Vowels v Evans
- rugby player sought to claim damages from the referee
Participants in Sporting Events - general duty
Cordon v Basi
Coast guards (not to make the situation worse) - general duty
OLL v SOS for Transport
Ambulance Service (to arrive within a reasonable time) - general duty
Kent v Griffiths
- ambulance took over half an hour to respond to an emergency call
Fire Service (not to make the situation worse) - general duty
Capital and County v Hampshire CC
- firemen turned off the sprinklers making the fire worse
Police (failure to respond) - general duty
Alexandrou v Oxford
- failure to respond to a burglar alarm which had triggered the 999 call
Caparo v Dickman Test
- Reasonably foreseeable
- Proximity
- Fair, Just, Reasonable.
Robinson v CC West Yorkshire
- is there any precedent
- is there an established principle
- the court should exercise judgement as to whether a duty should be recognised
Public authorities do not have blanket immunity from a duty of care
Lord Keith in Hill v CC West Yorkshire
- mother of the final victim of the Yorkshire Ripper
Public authorities, like private individuals and bodies, are under no duty of care to prevent the occurrence of harm.
Lord Reed in Robinson v CC West Yorkshire
The ECHR held that a duty was owed where the police ‘knew or ought to have known of the existence of a real and imminent threat to life of an identified individual
Osman v U.K.
- teacher stalked an killed his pupil
The failure of local authorities to protect children from neglect and abuse upon receiving social service reports was a breach of Art 3 rights
Z v U.K.
- neglect of children was reported to social services several times before they were removed after 5 years.
General duty by the police to avoid causing personal injury to individuals within reason
Robinson v CC West Yorkshire
The courts set an … standard of care
Objective
A defendant cannot plead an impulsive or careless disposition
Nettleship v Wilson
Whether a professional or reasonable man test applies?
Look at the act being performed, not the actor (Wilshire v Essex AHA)
‘negligence is doing something which a prudent and reasonable man would not do’
i.e. The reasonable men test applies when there is a correct way of doing something
Blythe v Birmingham Waterworks
- waterworks co installed faulty plumbing in a claimants house which caused flooding.
A jeweller does not have to reach the standard of a surgeon when doing an ear piercing
Phillips v Whitely
- an ear infection developed after a piercing.
A man doing DIY does not need to reach the standard of a master carpenter
Wells v Cooper
- Wells injured himself when a door handle, which cooper had fitted, broke.
The duty of care of a doctor is that of a reasonable doctor not the reasonable man
Bolam v Friern Hospital
- a patent suffered a fracture during therapy as a result of the doctor not issuing muscle relaxant
A duty of care exists to take a child away from it’s home if it is deemed to be required
Pierce v Doncaster
A junior doctor owes the same standard of care as a qualified doctor
Wilshire v Essex HA
- giving a premature baby the wrong amount of oxygen
A doctor must inform the patent of the risk that a reasonable person would have wanted to know about as well as any alternative treatment
Montgomery v Lanarkshire HB
- rare birth defect from caesarian
A lower standard of care applies with children. The test is whether a reasonable and careful child of that age would have foreseen the risk of injury
Mullin v Richards (ruler fight)
Adults cannot reasonably sue children
Orchard v lee
If public money and resources couldn’t prevent the event then they cannot be sued
Knight v Home Office
Factors to take into account when assessing the standard of care
- expertise
- common industry practice
- encouragement
- emergencies
- sports/ horseplay
The defendant must reach the standard of care of a reasonably competent doctor/ hypnotist/ driver, despite their lack of knowledge
Wilshire; McKenna; Nettleship
A higher degree of care is required of a 1st division footballer than of a local league player
Cordon v Basi
Common industry practice can still be negligent
Re Herald of Free Enterprise
- the ship capsized because the bow door was left open as commonly done
The defendant being drunk as a result of encouragement for the tour company was negligent
Brannon v Air Tours
A lower standard of care is generally applicable in an emergency
Watt v London cc
Injury can be consented to in sport / horseplay (up to a point of recklessness)
Woodridge v Summer
The standard of care may be adjusted to take into account for physical and mental impairments (but not if the defendant had been aware that his impairments would affect his ability to meet the standard of care)
Mansfield v Weetabix (Roberts v Ramsbottom)
- defendant crashed his lorry into the claimant’s shop while in a hypoglycaemic state
Insanity is not a defence in Tort
Dunnage v Randall
- mentally ill patient set fire to a house
Factors to Consider when assessing if there has been a breach
- foreseeability
- seriousness of potential harm
- magnitude of risk
- social benefit / utility of activity
- practicality of taking precautions
- the defendants knowledge of the claimant
- common practice
What could reasonably be expected of the defendant ought not to be affected by developments technological skill or scientific knowledge
Lunney and Oliphant
You can’t judge the standard of care though hindsight
Roe v HoH
- microscopic ruptures in the glass
The potential damage is higher with someone who is already injured
Paris v Stepney BC
- no safety goggles were provided to a man who had lost one eye
Impractical for parents to keep their children under constant supervision
Harris v Perry
A reasonable man does not take the precautions against every risk, only those likely to happen.
Bolton v Stone - minimal risk with cricket balls
Pearson v Lightning - foreseeable with golf balls
There was a reasonable risk but it was reasonable to run the risk as there had been an accident
Watt v Herefordshire cc
Denning: balance the books on the potential benefit
- Fireman hurt by equipment in a firetruck on the way to an emergency
No need to play games in the dark to entertain children (no social utility)
Scout association v Barnes
Act to mitigate against the public perception of compensation culture
Compensation Act 2006
Responsibility for individual action on heroism outlined in
Social Action, Responsibility and Heroism Act 2015
It would not have been feasible to take the precaution of closing the entire factory
Latimer v AEC
- sawdust placed on part of a wet factory floor.
The cost of precautions cost little in comparison to the damage caused
Overseas tanker v Miller steamship
If the defendant is aware that the claimant is less able to take care of himself or is at greater risk, the defendant should take greater care.
Yachting v Oliver Blair’s
A lack of medical attention while the patient was asleep was negligent despite it being industry practice
Sutcliffe v BMI healthcare
Re Ipsa Loquitur (the thing speaks for itself)
In the absence of any direct evidence, causation can be inferred from the facts if the injury is of the kind that does not normally occur without negligence,
Factual Causation test
‘But for’ the claimants actions/omissions, would the claimant have suffered the damage anyway? (Cork v Kirby)
- epileptic fit while working of a roof
Factual Causation where there are multiple causes
- Balance of probabilities
- McGhee approach
The Balance of Probabilities Approach
Does the increased tortious risk outweigh the original non-tortious risk?
where the injury could have been made by any one of 5 causes, of which only one was totious negligence, 20% was not enough to make out causation (must be over 50%)
Wilshire v Essex AHA
A breach only causing 25% of the damage, so the claim failed.
Hotson v East Berkshire AHA
Both hunters found liable for injuring the claimant even though it could not be identified which hunter shot the pellet.
Cook v Lewis
Market Share Rule (California) - the claimant could sue any number of the manufacturers who marketed chemicals, which gave the C the injury.
Sindell v Abbott Laboratories
An exception to the normal application of the ‘but-for’ rule, justified by the principle of fully compensating the plaintiff for damage totiously inflicted.
Baker v Willoughby
- claimant was run over and then was later shot in the same leg.
The McGhee Approach
Where the damage cannot be identified, the defendant can be held liable if his action Materially Increased the risk of damage.
The lack of washing facilities materially increased the risk of dermatitis developing.
McGhee v National Coal Board.
A claimant does not have to prove that the defendants misconduct actually contributed to the harm, it is enough to prove that it probably contributed to the occurrence of harm.
Fairchild v Glenhaven Funeral Services Ltd.
As a result of the surgeon’s failure to warn the patient, she cannot be said to have given informed consent to the surgeon.
Chester v Afshar
-
Fairness suggests that if more than one person may have been responsible, liability should be divided accordingly to the probability that one or the other caused the harm.
Lord Hoffman in Barker v Corus
The exception in fairchild also applies to single defendants, not just multiple ones, in relation to asbestos illness.
Sienkiewicz v Grief (UK) Ltd
Factual Causation
Where there are multiple cumulative causes (ones that build up the overall level of damage).
In such cases, appointment is used.
Either action had the potential to cause the full damage, so liability was appointed between the two defendants.
Fitzgerald v Land and Patel.
- crossed the road when the light was green. was hit by one car and then subsequently another: both were speeding.
Potential Novus Actus Interveniens, which breach the chain of causation
- acts of god/ nature
- acts of a third party
- acts of the claimant
- successive torts
Acts of God/ Natural disasters will break the chain of causation if unforeseeable.
Humber Oil Terminal v Siviland
- sea bed collapsed
Acts of Third Parties must be unforseeable as ‘unwarrantable’ in order to break the chain
The Oropesa
- ship negligently crashed and the captain dies trying to cross to the other ship to discuss the crash
Actions made in the heat of the moment don’t break chains
Scott v Shepherd
- a firework was thrown in a market and was instinctively thrown away by a trader and hit scott
Medical treatement must be ‘palpably wrong’ to be a NAI
Robinson v The Post Office
The high degree of control exercised over the boys by the home office prevented their actions from being a NAI
Home Office v Dorset Yacht Co
- escaped on a supervised trip and damaged a yacht
There is not a NAI in the situation of a willing person trying to aid the situation if the defendant caused the danger
Haynes v Haywood
- policeman was injured after catching a bolting horse
There is not a NAI in the situation of a willing person trying to aid the situation if the defendant is the occupier
Smith v Littlewoods
Acts of the Claimant must be unforeseeable and unreasonable in order to break the chain of causation
McKew v Holland (unreasonable) - climbing stairs with injury
Wieland v Cyril (reasonable ) - head brace prevented her from wearing her glasses.
suicide will generally not break the chain of causation
Reeves v MPC
- Man was a known suicide risk while in custody
Successive Torts
Where multiple injuries are caused to a claimant in separate incidents
a subsequent tort will not remove the defendants liability for the the initial tort
Baker v Willoughby - running over the claimant but he was also later injured in a shooting.
The defendant is only liable up until the second event has occurred.
Jobling v Associated Diaries.
- injured his back but later developed a separate back injury
Remoteness
A court may not hold the defendant liable if they consider the unexpected damage too remote.
The test for reasonable foreseeability
a claimant can recover for all damage that would have been reasonably foreseeable (The Wagon Mound No. 1)
- spilt oil in sydney harbour which set fire
Narrow approach to foreseeable loss
Contracting Weil’s disease was not reasonably foreseeable (Tremain v Pike)
Broad approach to foreseeable loss
there is no need to foresee the exact method by which the damage occurs
Hughes v Lord Advocate.
- workmen left oil lamps in the middle of the road when an 8 yo boy knocked one over and caused an explosion
Only real and substantial chances of losses may be recovered, not speculative ones.
Allied Maples v Simmons and Simmons
- failed to advise on a risk during a company takeover
Extent of the Damage: Once it has been established that the claimant has suffered reasonably foreseeable damage, the defendant is liable for the full extent of the damage, even if it is excessive.
Hughes v Lord Advocate.
The defendant takes the victim as he finds them, regardless of a particular condition which aggravates the situation (Thin Skull Rule)
Robinson v Post Office
Where the claimant’s impecuniocity exacerbates the damage, the full extent of the damage can still be claimed for.
Lagdon v O’Connor
- claiming for the cost of a hire car after a crash
Risk of Damage: as long as the type fo damage is foreseeable, even if the chances of it happening are minimal, it can still be recovered.
The Wagon Mound (No.2)
The Council were liable for water damage but no damage from squatters (Third Party broke the chain of causation)
Lamb v Camden LBC
Guidelines for breaking the chain of causation
- A discretion between acts and omissions
- Negligent conduct is more likely to break the chain of causation than non-negligence.
(Knightley v Jones) - traffic accident was followed by a mishandling of the situation by a police officer which resulted in another death
if a court thinks it fair, they can reduce compensation for an injury instead of no compensation.
Spencer v Wincanton
The choice not to have an abortion was not a break in the chain of causation
Emeh v Kensington & Chelsea AHA
A change in mental state does not break the chain of causation
Meah v McCreamer
Suing someone for asking for compensation was not deemed appropriate by the court.
Meah v McCreamer (No. 2)
You can’t receive compensation for your criminal actions
Grey v Thames Trains
Depression is a serious consequence of a breach and is not too remote for a claim
Corr v IBC Vehicles Ltd
Proving Negligence
- Burden of proof is on the claimant
- the standard of proof is on the balance of probabilities
- generally, there is no liability for a non- feasance (omission), only for a misfeasance.
Three Main Defences for Negligence
- Consent
- Contributory Negligence
Illegality
Volenti non fit injura (Volenti)
- no harm can be done to one who consents
- outlined by Lord Herschel in Smith v Baker
- crane dropped a stone on him but he was aware of the risk
Requirements for Volenti
- Agreement to the risk
- full knowledge of the risk
- voluntary decision
agreement to the risk can be express or implied
Nettleship v Weston
Full knowledge of the nature and extent of the risk
Morris v Murray
- drink man accepting a ride in an aircraft from a drink pilot
Voluntary decision by the claimant: consent must be freely given. Examples:
Employers: Shatwell
Rescuers: Haynes v Harwood (policeman injured while catching a bolting horse)
Suicide: Reeves v Metropolitan Police Commissioner
It is reasonable that if you create an emergency then people will come to the rescue
Baker v Hopkins
There is a lower standard of care for competitors
Wooldridge v Sumners
An exclusion of liability for death or personal injury arising from negligence will not be an effective defence under:
s. 2 Unfair Contracts Act 1977
s. 65 Consumer Rights Act 1925
s. 149 Road Traffic Act 1988
Contributory negligence (a partial defence), is governed by:
s. 1 Law Reform (contributory negligence) Act 1945
Three elements of contributory negligence defence:
- negligent claimant
- claimant contribution to the damage
- the extent of the reduction in damages.
Was the claimant acting negligently? (there are different situations in cases of emergencies, children & rescuers)
Jones v Livox Quarries
- riding a tow bar when the vehicle crashed
did the claimants actions contribute to the damages suffered.
Froom v Butcher
- car crash where the defendant was not wearing a seatbelt
If you get in a car knowing that the driver is drunk then you are partly at fault for not taking care of yourself.
Owens v Brimmell
The claimant was partly at fault by choosing to smoke and therefore contributing to the harm
Badger v Mod
Judging a child claimant
Judged against the reasonable child of their age
Where the claimant is put in a different dilemma, the court will make allowances
Jones v Boyce.
The defence of contributory negligence is not available for assault or battery
Coop group v Pritchard
- claimant was removed from a shop after being aggressive, which was deemed a battery
no action may be based on an illegal cause.
Ashton v Turner
There can be a case for acting against the public benefit
Patel v Mirza
The three issues that would make the case against the public benefit:
- the underlying purpose of the prohibition that is being transgressed
- Any relevant public phrases that would be rendered less effective as a result
- the possibility of ‘overkill’ unless the law is applied with a due sense of proportionality.
The law’s purpose is to deter dishonest insurance claims
Gujra v Roath
The claimant cannot raise the defence of illegality if they are themselves committing an illegal action as well
Revill v Newberg
Claims will likely fail on illegality even fi there is a breach of a duty of care
Vellino v CC Greater Manchester
Liability for a breach of duty cannot be negated by psychiatric conditions in Tort law
Grey v Thames Trains.
Exam Structure:
Duty of Care Standard of Care - Breach of Duty Causation Remoteness Defences
