Law-Liability in Negligence (AS)

Question 1

What is negligence?

Answer 1

An area of the law of tort

Question 2

What is tort?

Answer 2

A french word which means wrong. It is a civil wrong other than a break of contract or breach of trust

Question 3

What is the purpose of the law of tort?

Answer 3

To provide remedies when one person has been affected by another’s acts or omissions and the law considers that a remedy should be available

Question 4

What is the most usual remedy?

Answer 4

Damages (financial compensation)

Question 5

What three elements does negligence require?

Answer 5

A duty of care being owed to the claimant by the defendant, that duty of care being broken as required standard of care hasn’t been reached by defendant, and that broken duty must have caused the loss complained of and the loss must not be too remote a consequence

Question 6

What are these three elements simply known as?

Answer 6

Duty, breach and damage

Question 7

What is civil law concerned with?

Answer 7

Settling disputes between individuals, individuals’ businesses and, sometimes, the Government

Question 8

What is the key difference between civil and criminal law?

Answer 8

Civil law is primarily designed to settle disputes, not punish wrongdoing

Question 9

How is a civil case started?

Answer 9

By the person who has suffered the loss (claimant) as the result of a wrong which only directly affects him or her

Question 10

What is a typical negligence case?

Answer 10

A claim for losses and injuries resulting from a car crash

Question 11

What does a negligence claim require?

Answer 11

Proof that the defendant was negligent

Question 12

What id the civil process?

Answer 12

The procedure by which a claim makes its way through the court system, so the court can decide whether the claim will succeed, and if so, what amount of damages should be awarded

Question 13

What is the process designed to do?

Answer 13

Although it can be long and complicated for the claimant and defendant, it is designed to keep delay to the minimum through case management

Question 14

What happens once a person is advised?

Answer 14

They are likely to have a good claim in negligence, the major consideration is to obtain sufficient evidence of the losses suffered

Question 15

What does the length and complexity of the process depend on?

Answer 15

Nature of injuries, whether the evidence is clear, and whether and how the defendant makes his defence and tries to establish that he has not been negligent

Question 16

What is civil evidence?

Answer 16

Rules that set out how the facts of a civil case must be proved, and the degree of certainty required

Question 17

What is burden of proof?

Answer 17

The obligation on a party to establish the facts in issue in a case to the required degree of certainty (standard of proof) in order to prove their case

Question 18

In a civil trial, who is the burden upon?

Answer 18

The claimant to prove the liability of the defendant

Question 19

What is the standard of proof in civil law?

Answer 19

On a balance of probabilities. This is lower standard than in criminal cases

Question 20

How has the balance of probabilities been defined?

Answer 20

As ‘more likely than not’, or ‘51%’-effectively the matter of convincing the judge that the claimant is right in their version of events

Question 21

Who gave the famous definition of negligence?

Answer 21

Baron Anderson, in Blyth v Birmingham Waterworks Co. 1856

Question 22

What was the definition of negligence given by Baron Anderson

Answer 22

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 23

What would a reasonable man do?

Answer 23

Try and fulfil his duties to other people. This would include a duty of care owed to others

Question 24

What is a duty of care?

Answer 24

A duty to take care of others or to look out for them

Question 25

What case tried to define duty of care, or how it is owed?

Answer 25

Donoghue v Stevenson 1932

Question 26

What happened in Donoghue v Stevenson 1932?

Answer 26

Snail in the ginger beer case, resulting in the House of Lords saying that manufacturers owe a duty of care to the consumer of their products-“not to harm them by consumption of their products”. Created the neighbour principle

Question 27

What is the neighbour principle based on?

Answer 27

The command in the Bible to ‘love thy neighbour’-Lord Atkin used this as his starting point

Question 28

What did the neighbour principle therefore allow?

Answer 28

Liability without a contract and gave the opportunity for the law to develop the rules of negligence

Question 29

Where does the latest test for duty of care come from?

Answer 29

Caparo v Dickman 1990

Question 30

What happened in Caparo v Dickman 1990?

Answer 30

Involved a claim by an investor who had lost money in a company and claimed against the auditors of the company as they had produced inaccurate accounts

Question 31

What did the court decide based on the Caparo v Dickman case?

Answer 31

That the law should develop new categories of negligence incrementally and by analogy with established categories of negligence. This means the court would first look at existing precedents and if none could be found or adapted to fit the case, then a general test would be applied to see whether a duty of care should exist

Question 32

What is the three part test set in Caparo v Dickman 1990?

Answer 32

Foreseeability, proximity and fair/just/reasonable to impose liability on defendant. All parts must be satisfied if there is to be duty of care owed by defendant to claimant, and each part must be looked at in turn

Question 33

What is foreseeability?

Answer 33

Ab objective test: would a reasonable person in the defendant’s position have foreseen that someone in the claimant’s position might be injured?

Question 34

How is there foresight in Donoghue v Stevenson 1932?

Answer 34

Can be seen that failing to stop a snail getting into a bottle will affect the consumer of the contents. This is a consequence of producing food that has foreign bodies in it, and a reasonable person in the defendant’s position would foresee that the claimant might be injured

Question 35

What other case would this apply to by analogy?

Answer 35

Smedleys v Breed 1974 where a caterpillar was found in a tin of pees. If the consumer hadn’t seen it and eaten it, then become is, there would be a similar claim to the one in Donoghue v Stevenson

Question 36

What is a good case example for foresight?

Answer 36

Kent v Griffiths 2000

Question 37

What happened in Kent v Griffiths 2000?

Answer 37

It was decided that the ambulance service owed a duty of care to a member of the public on whose behalf a 999 call was made. This was because it was reasonably foreseeable that a person in the claimant’s position would be further injured if the ambulance failed to arrive or took too long to arrive

Question 38

What is proximity?

Answer 38

It means closeness, and this can be by spcae, time or relationship

Question 39

What is a case example for proximity?

Answer 39

Bourhill v Young 1943

Question 40

What happened in Bourhill v Young 1943?

Answer 40

Claimant got off tram and heard a motorcycle go past and then heard a collision. She didn’t see it and was in a safe place away from it, but then decided to see what happened and saw the dead motorcyclist and aftermath. She suffered shock from the sight and claimed that that caused her miscarriage. The defendant didn’t owe a duty of care as she was in a safe place and hadn’t seen the accident but went to see it voluntarily. There was no proximity in space

Question 41

What would have happened if the claimant had been related to the victim/defendant?

Answer 41

Eg McLoughlin v O’Brien where the wife was informed of a serious accident involving her husband and children. She wasn’t near the accident at the time but suffered shock after going to the hospital and seeing her husband in pain/distress, her seriously ill children and one child who had died. The accident owed a duty of care as there was proximity of relationship

Question 42

Why is there normally little issue of proximity?

Answer 42

Because the victim is usually part of the event

Question 43

What is reasonableness?

Answer 43

Whether it is fair, just and reasonable to impose a duty of care-a matter of public policy

Question 44

What is an example for reasonableness?

Answer 44

MPC v Reeves 2001

Question 45

What happened in MPC v Reeves 2001

Answer 45

Police took a man into custody who was also known to be at risk of committing suicide. Whilst in custody, he hanged himself in his cell and the police were found to have owed him a duty of care (they owe a duty of care in some circumstances eg when taking people into custody)

Question 46

What is an example of a case that failed at the third stage of the three part test (Reasonableness)?

Answer 46

Hills v Chief Constable of West Yorkshire 1988

Question 47

What happened in Hills v Chief Constable of West Yorkshire 1988?

Answer 47

House of Lords refused to impose a duty of care on the police to the mother of the Yorkshire Ripper’s last victim. Court found no duty of care to potential victims of the crime and the police need to be able to work without undue worry of legal action in negligence against them

Question 48

What test is used to decide whether there is a breach of duty?

Answer 48

Whether the defendant behaved as a prudent and reasonable person would have (concept of the ‘reasonable man’)

Question 49

When was the reasonable man principle set out?

Answer 49

In Blyth v Birmingham Waterworks Co 1856-if the defendants behaviour falls below the standard of the reasonable person then they are in breach of duty

Question 50

What cases can be used to discuss the reasonable man?

Answer 50

Nettleship v Westin 1971, Wells v Cooper 1954, Mullins v Richards 1998, and Bolam v Friern Hospital Management Committee 1957

Question 51

What happened in Nettleship v Western 1971?

Answer 51

Case example for inexperience, where a learner driver on third lesson in car without dual control and no professional instructor hit a lamppost and the instructor was injured. It was decided that the standard of care expected of a learner driver is the same as that of any driver

Question 52

What happened in Wells v Cooper 1954?

Answer 52

Claimant fell down steps after a new door handle fitted by an expectedly competent person, the handle fell off as he went to shut the door in heavy winds. It was decided that the standard of care required is of the reasonably competent person doing the job in question, the man doing DIY was expected to reach the standard of a reasonable competent professional doing the job

Question 53

What happened in Mullins v Richards 1998?

Answer 53

Two 15 year old schoolgirls were fighting with plastic rulers, one snapper and a splinter went into one of their eyes causing blindness. The girl was only expected to meet the standard of a reasonable 15 year old school girl, not that of a reasonable man so she was not found to be in breach of duty

Question 54

What happened in Bolan v Friern Hospital 1957?

Answer 54

Case example for industry norm standards being followed. Claimant suffered mental illness and was advised electro-convulsive therapy and signed consent form but wasn’t warned of risk of breaking a bone whilst strapped down and shocked. He broke a bone in second therapy and hospital hadn’t used relaxant drugs that would have reduced the risk. Some say they were used in general practice and others argued there was no particular reason to use them in his case. Standard of a professional is judged by standard of the profession. In this case, following either of two accepted medical methods was said to be acceptable in reaching standard of care expected

Question 55

What are the factors to decide whether a person has acted reasonably?

Answer 55

Magnitude of risk, have all practical precautions been taken, and the greater good (are there benefits of taking the risk)

Question 56

What is a case for magnitude of risk?

Answer 56

Bolton v Stone 1951

Question 57

What happened in Bolton v Stone 1951?

Answer 57

During a cricket match, a ball hit a person standing outside her house on a road outside the grounds, over a five meter high protective fence. Cricket ground had been used for 90 years and no one outside it had been injured previously. No duty of care was broken as the risk of injury to a person by a ball outside the grounds was so small that the probability of it happening would not be anticipated by a reasonable man

Question 58

What is a case for practical precautions?

Answer 58

Latimer v AEC 1953

Question 59

What happened in Latimer v AEC 1953?

Answer 59

Defendants factory flooded after heaver rainstorm. Water mixed with oil and made floor slippery so warning signs were put up and message was passed round workplace, and sand and sawdust were used to dry the floor but the claimant slipped and was injured. Defendant owed a duty of care to employees but hadn’t breached it as all reasonable practical precautions had been taken in the circumstances of the accident

Question 60

What is a case for the greater good?

Answer 60

Watts v HCC 1954?

Question 61

What happened in Watts v HCC 1954?

Answer 61

Firefighters injured by lifting gear when travelling in a vehicle not specifically fitted for carrying the gear because the right vehicle was already in use. The vehicle however crushed a firefighter. The benefits of saving a woman’s life outweighed the risk of injury to a firefighter when using the best, but unsuitable vehicle in an emergency so the duty of care owed by the council to the firefighters hadn’t been breached

Question 62

What is looked at after it has been established that there was a breach in duty of care?

Answer 62

Was the loss foreseeable

Question 63

What factors are looked at for foreseeable loss?

Answer 63

causation in fact, foreseeability of loss, and the thin skull rule

Question 64

What is causation in fact?

Answer 64

The but for test, ‘but for the defendant’s negligence, would the damage have occurred?’

Question 65

What is a case for causation in fact?

Answer 65

Barnett v Chelsea hospital 1969

Question 66

What happened in Barnett v Chelsea hospital 1969?

Answer 66

Barnett came to hospital with stomach pains, the casualty officer didn’t examine him which would have been unusual in practice, and sent him home but he died five hours later. There was no causation in fact as the hospital couldn’t have done anything to save his life, cause of death was the original poisoning, not the failure to examine him properly

Question 67

What is a case where the loss was foreseeable?

Answer 67

Hughes v Lord Advocate

Question 68

What happened in Hughes v Lord Advocate?

Answer 68

Boys took paraffin warning lamp down unattended open manhole and knocked it back in the hole when exiting, causing an explosion and burns which was foreseeable.. As long as the type of damage is reasonably foreseeable, it doesn’t matter if it occurred in an unforeseeable way. So its foreseeable that the unattended lamps would cause burns but doesn’t matter that it isn’t foreseeable that the burns would be due to an explosion

Question 69

What is a case where the loss was not foreseeable?

Answer 69

Overseas Tankship UK v Morts Dock and Co Ltd (the wagon mound)

Question 70

What happened in the wagon mound case?

Answer 70

Oil spilt while refuelling ship caused a fire on the claimants wharf which was a distance away and being repaired. The spilt oil ignited the molten metal on floating cotton waste. Damage by the spilt oil was foreseeable, but the damage by fire wasn’t foreseeable and so was too remote

Question 71

What is the thin skull rule?

Answer 71

Also known as the eggshell rule, is to take your victim as you find him

Question 72

What is a case for the think skull rule?

Answer 72

Smith v Leech Brain and Co

Question 73

What happened in Smith v Leech Brain and Co?

Answer 73

Claimant had a pre-cancerous condition. He was splashed on the lip by molten metal. The burn turned into cancer as a result of his condition and his claim succeeded. A person’s liability in negligence isn’t extinguished or lessened because the claimant had a pre-existing condition that made the injuries worse