Introduction to negligence

Question 1

Specific legal meaning of negligence.

Answer 1

The shorthand description of the tort of breach of duty of care.

Question 2

Common contexts of negligence.

Answer 2

1. Road accidents
2. Poor medical treatment
3. Injury on another’s premises.
4. Injury at work.

Question 3

Elements of negligence

Answer 3

1. Duty of care
2. Breach of duty
3. Damage
4. Causation
   Claimant must prove all of these.

Question 4

Contributory negligence

Answer 4

Can be argued by the defendant if the claimant is partly to blame for their injuries. For example: not wearing a seatbelt.

Question 5

Standard of care

Answer 5

The defendant must not fall below the standard of a reasonable person.

Question 6

Blyth v Birmingham Waterworks (1856)

Answer 6

‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’

Question 7

Nettleship v Western (1971)

Answer 7

This case demonstrates that inexperience is irrelevant. Varying standards would cause problems. The test is easier to apply, but is clearly based on policy.

Question 8

Bolton v Stone (1951)

Answer 8

• Likelihood that the injury will occur.
• The seriousness of the injury risked.

Question 9

Paris v Stepney Borough Council (1951)

Answer 9

What if there is risk of greater injury than would normally be expected? For example: Claimant may have a disability that causes their injuries to become worse.

Question 10

Latimer v AEC (1952)

Answer 10

Should all risk be eliminated. If the defendant has taken reasonable measures to aim to ensure there are no injuries then they may not be liable.

Question 10

Bolam v Friern Hospital management committee (1957)

Answer 10

• Establishes a doctor/ patient relationship.
• Medical professionals are not liable if they acted in accordance with a practice accepted as proper by a reasonable body of such profession.

Question 11

Bolitho v City and Hackney HA (1998)

Answer 11

The opinions of medical professionals must be capable of withstanding logical analysis.

Question 12

Two important considerations with advice and consent in medical professions

Answer 12

1. Does the patient understand the nature of the treatment and do they consent to it?
   if not, tort of battery may have been committed.
2. Have the risks involved in their treatment and possible alternatives been properly explained to the patient.
   if not, tort of negligence may have been committed.

Question 13

Montgomery v Lanarkshire Health Board (2015)

Answer 13

Informed consent is not required to satisfy the professional duty.

Question 14

Duty to take reasonable care to ensure that the patient is aware of:

Answer 14

• Any material risks involved in the treatment
• Reasonable alternative treatments.