(GREEN) Negligence including General Defences

Question 1

What 3 things must be proved in a negligence case?

Answer 1

• D owed C a duty of care
• D breached that duty of care
• D’s breach caused the damage to C which was not too remote

Question 2

What does Robinson v CCoWY say?

Answer 2

If a duty has been owed in a similar situation before, a duty should also be applied in this case.

Question 3

When do you need to use Caparo v Dickman?

Answer 3

If a scenario is a novel or new situation.

Question 4

What is the Caparo test?

Answer 4

• Would the reasonable person foresee a risk of damage from what D has done?
• Is there a proximity/ closeness (closeness of time and space or closeness through a relationship of knowledge or dependency) between D and C?
• Is it fair, just and reasonable to impose a duty on D?

Question 5

What is the case where the Caparo test applies and a duty applies?

Answer 5

Jolley v Sutton. Harm was foreseeable because the boat was in a dangerous condition and kids were likely to play on it because it was in a park. There was proximity because C was close in time and space to the boat and the council knew of the situation so there is also proximity through knowledge. It is fair, just and reasonable to impose a duty.

Question 6

What is the case where the Caparo test decided a duty didn’t apply?

Answer 6

Bourhill v Young. Harm wasn’t foreseeable because C wasn’t involved in the crash and chose to go and look at the aftermath. C didn’t have proximity through relationship or time and space because she was too far away. It doesn’t matter if it would be fair, just and reasonable when another element fails.

Question 7

What does Blyth v Birmingham Waterworks define a breach of duty as?

Answer 7

D has fallen below the standard of care expected of a reasonable person doing the same activity.

Question 8

What doesn’t lower the standard of care expected and which case shows this?

Answer 8

Inexperience. In Nettleship v Weston, D, a learner driver, was compared to the average competent driver even though she was a learner driver.

Question 9

Which case said that profession or expertise raises the standard of care?

Answer 9

Bolam v Friern Barnet HMC. D was compared to the reasonable doctor.

Question 10

What are the situations in which D would be compared to a professional?

Answer 10

• D actually has the skills/ expertise of a professional.
• D is acting in a way where they would be expected to be a professional (even if they don’t actually have the expertise).

Question 11

What was the case where D was not compared to a professional because they weren’t a professional and weren’t expected to be one?

Answer 11

Wells v Cooper. D was compared to a reasonable person doing DIY.

Question 12

Which case said that age lowers the standard of care and what is the standard lowered to?

Answer 12

Mullin v Richards. D will be compared to reasonable children of the same age.

Question 13

What are the 4 risk factors that help determine if D has reached the standard of care expected of them?

Answer 13

• Size of risk
• Seriousness of potential harm
• Practicability of precautions
• Benefits (to society) of taking a risk

Question 14

How does size of risk affect the likelihood that D breached their duty of care?

Answer 14

It looks at how likely is harm to happen. If the risk of harm is small, the reasonable person would take less precautions and so it is less likely D has breached the duty of care. If the risk of harm is high, the reasonable person would take more precautions and so it is more likely D has breached the duty of care.

Question 15

Which cases would you use for size of risk?

Answer 15

Small size of risk- Bolton v Stone
Large size of risk- Miller v Jackson

Question 16

How does seriousness of potential harm affect the likelihood that D breached their duty of care?

Answer 16

It looks at how bad harm could be if it happened. The reasonable person would take more precautions if the potential harm to C could be serious and so D is more likely to have breached their duty of care.

Question 17

Which case would you use for seriousness of potential harm?

Answer 17

Paris v SBC. D was already blind in one eye and so an injury to his other eye would be more serious because it would result in total blindness (a normal person would still have sight in one eye).

Question 18

How does practicability of precautions affect the likelihood that D breached their duty of care?

Answer 18

It looks at how cheap, easy and quick it was to take precautions to reduce the risk of harm. If it would have been cheap, easy and quick then D is more likely to be in breach as the reasonable person would have taken them.

Question 19

Which cases would you use for practicability of precautions?

Answer 19

Paris v SBC- should have provided goggles which would have been cheap, easy and quick.
Haley v LEB (if Paris v SBC used already)- should have put up a fence which the reasonable person would have done, putting a hammer in front of the hole wasn’t enough.
Latimer v AEC- D had taken precautions such as putting sawdust on the floor and the reasonable person wouldn’t have done anything else.

Question 20

How does potential benefits to society of taking a risk affect the likelihood that D breached their duty of care?

Answer 20

If the benefit to society outweighs the risk of harm to the claimant there is no breach. The reasonable person would take the risk if the potential benefit outweighs the risk.

Question 21

Which case would you use for potential benefits to society of taking a risk?

Answer 21

Watt v HCC- used a fire truck which wasn’t designed to use a jack but using it anyway would save a woman’s life as there weren’t any suitable fire trucks available. Injury to C didn’t outweigh the benefit of saving someone’s life.

Question 22

What 2 things must be proven for damage?

Answer 22

• D’s breach caused the damage to C
• The damage was not too remote

Question 23

Which case would you use for factual causation (but for test)?

Answer 23

Barnett v Chelsea and Kensington Hospital. C’s husband would still have died but for the doctor failing to examine him after he drank arsenic.

Question 24

Which case would you use for legal causation for V’s own actions?

Answer 24

Reeves v MPC. Here V’s actions were reasonable and foreseeable as the police knew V was a suicide risk.

Question 25

Which case would you use for legal causation for actions of a third party?

Answer 25

Wilkin-Shaw v Fuller. Third party’s actions did break the chain as they were unreasonable and unforeseeable.

Question 26

Which case says that the type of damage must be reasonably foreseeable when deciding if the damage was too remote?

Answer 26

The Wagon Mound. The damage to the slipways was reasonably foreseeable but the fire was not. C can only sue for the damage to the slipways.

Question 27

Which case says that how the harm was caused does not have to be reasonably foreseeable when deciding if the damage was too remote?

Answer 27

Hughes v Lord Advocate. Even though the burns were caused in an unforeseeable way, burns were foreseeable so D is still liable.

Question 28

Which case says that the extent of harm does not have to be reasonably foreseeable when deciding if the damage was too remote?

Answer 28

Bradford v Robinson Rentals. It was not foreseeable that C would suffer from frostbite but a cold related injury was foreseeable so D is still liable.

Question 29

Which case shows the eggshell skull rule?

Answer 29

Smith v Leech Brain. Burns were foreseeable and burns were caused. It didn’t matter that C’s husband already had pre-cancerous cells as D must take C as he finds them.

Question 30

What does the Law Reform (Contributory Negligence) Act 1945 say?

Answer 30

That damages awarded to the claimant can be reduced depending on the extent to which the claimant contributed to his own injury. Therefore it is a partial defence because while it reduces the amount of damages, it does not stop D being liable.

Question 31

Which case would you use for contributory negligence and what does it say?

Answer 31

Sayers v Harlow UDC. C’s damages were reduced by 25% because she contributed to her injury by climbing on the toilet roll holder. This was foolish and dangerous so reduced the damages owed to her.

Question 32

Is D still liable if volenti applies?

Answer 32

No

Question 33

What are the 3 elements to volenti?

Answer 33

• C knew the precise risk involved in the situation
• C was able to exercise free choice
• C voluntarily accepted the risk

Question 34

What does the first element of volenti mean? (C knows the precise risk involved)

Answer 34

C knows the nature of the actual risk. It is not if C knew there was a risk, C must know the nature of the exact risk. It also doesn’t matter what the claimant or reasonable person should have known, it is what C actually knew so it is subjective.

Question 35

Which case said that C must know the specific risk involved in volenti?

Answer 35

Stermer v Lawson. It was decided that C didn’t know about the precise nature of the risk as he didn’t understand what could go wrong- he hadn’t been shown how to use the motorbike.

Question 36

What does the second element of volenti mean? (C was able to exercise free choice)

Answer 36

If C was forced into doing something through pressure, duress or obligation then they haven’t exercised free choice.

Question 37

Which cases would you use for the second element of volenti?

Answer 37

Smith v Baker- C was forced into accepting the risk as he would lose his job if he didn’t. He clearly didn’t accept the risk because he had complained about the risk previously. (C has not exercised free choice if they are forced into accepting the risk).

Ogwo v Taylor- C had a legal and contractual duty to put out the fire as a fireman so didn’t exercise free choice. (C has not exercised free choice where they have a duty to act)

Question 38

What does the third element of volenti mean and how is it different to the second? (Voluntary acceptance of risk)

Answer 38

Voluntary acceptance is where C chooses to take the risk anyway.
Exercising free will is where C could have chosen to avoid the risk.

Question 39

Which case would you use for the third element of volenti?

Answer 39

ICI v Shatwell. C voluntarily accepted the risk of danger because he ignored the instructions on handling detonators given to him by his employer. He chose to ignore them so he clearly accepts the risk of danger voluntarily.

Question 40

What are the positives about the fact that for the Caparo test there must be sufficient proximity in time and space between the two parties involved?

Answer 40

On one hand this rule can be seen as fair because it limits D’s liability to those claimants who will reasonably be affected by D’s breach. This is good because otherwise there may be no end to who D may be liable to.

Question 41

What are the negatives about the fact that for the Caparo test there must be sufficient proximity in time and space between the two parties involved?

Answer 41

However, the test may be subjective as one judge may decide there is proximity and another will decide there is not. For example, in Bourhill v Young, the court held that the motorcyclist did not owe a duty to the pregnant claimant who was in another street but in hearing distance of the collision. Another judge may have held a differing opinion and decide there was proximity. This can lead to uncertainty and unfairness as different decisions may be made in cases with similar facts. This will mean that lawyers will not be able to properly advise clients as they don’t know what the outcome will be. This may also cause issues for judges who have different precedents to consider.

Question 42

What are the positives of the principle in Nettleship v Weston that inexperience doesn’t lower the standard of care for defendants?

Answer 42

This rule creates certainty because all defendants will be held to the same objective standard. It also ensures high standards are maintained because inexperienced will not be an excuse. For example, a hairdressers salon will make sure the trainee hairdresser is properly supervised and receives the correct amount of training before treating any customers.

Question 43

What are the negatives of the principle in Nettleship v Weston that inexperience doesn’t lower the standard of care for defendants?

Answer 43

However, this can be unfair because it expects D to meet a standard that is higher than common sense would dictate. Furthermore, profession/ skill and age can change the standard of care, seemingly because D has more experience in a job or lacks life experience. This makes it uncertain when experience is actually relevant and makes the law harder to understand. This can lead to a lack of respect for the law.

Question 44

What are the positives of the principle in Smith v Leech Brain that D is still responsible for the full extent of damage even if C had a weakness D was unaware of- eggshell skull rule?

Answer 44

This creates certainty because D can always be sued in these cases and ensures justice for any vulnerable C. It is protective to all claimants who will never be blamed for being particularly vulnerable. This was the case in Paris v SBC. This will encourage D to take more precautions to cover all eventualities.

Question 45

What are the negatives of the principle in Smith v Leech Brain that D is still responsible for the full extent of damage even if C had a weakness D was unaware of- eggshell skull rule?

Answer 45

However, this can be unfair on D because they can’t take precautions against a weakness they don’t know about and conditions such as the cancer in Smith v Leech Brain can be very unforeseeable. This rigid rule may therefore create injustice. Furthermore, it goes against the legal theory that the type of damage must be reasonably foreseeable and can consequently cause confusion. This makes the law harder to understand.

Question 46

What are the positives about negligence being based on a fault system (i.e. C has to prove that D was in breach to be successful)?

Answer 46

This is good because it holds defendants accountable for their own careless actions. This acts as an incentive for people to take care when carrying out actions which can affect others. This is also fair on D as they would not deserve to be sued if the situation was essentially an unforeseeable accident. Compensation levels are also higher than in a no fault system like New Zealand where the compensation scheme is funded by the taxpayer.

Question 47

What are the negatives about negligence being based on a fault system (i.e. C has to prove that D was in breach to be successful)?

Answer 47

However, it can be hard to prove fault and C may not have enough money to fund expert reports and legal fees. This means C is not guaranteed compensation if they are affected by C’s conduct. The New Zealand no fault system is more straightforward and claimants don’t have to go through the process of suing someone which saves time and money. It is also an easier process to understand for claimants.