Liability in negligence Flashcards
Negligence definition
Defined by Baron Alderson in Blythe v Birmingham Waterworks Co. - “Failing to do something which the reasonable person would do or doing something which the reasonable person would not do”
What elements have to be proved for someone to be negligent
- There was a duty of care owed by defendant to claimant
- They breached this duty
- The breach causes reasonably foreseeable injury or damages
Where is duty of care set out in
Heaven v Pender - a duty of care is owed when “the person or property of one was in such proximity to the person or property of another, that, if due care was not taken, damage might be done by one to another”
The neighbour principle
Established in the case of Donoghue v Stevenson.
A person who is owed a duty of care by the defendant. it is anyone you ought to bear in mind, who could be injured by your act or omission
Explain the test for deciding whether a duty of care existed
Caparo test - Three part test
1. Was damage or harm reasonably foreseeable - Kent v Griffiths
2.is there sufficient proximate relationship between claimant and defendant - Bourhill v Young
3.is it fair, just and reasonable to impose a duty - Hill v Chief constable of West Yorkshire
Learners and Person in Training
Learners - Judged at standard of competent, more experienced person - Nettleship v Weston
Reasonable professional - Wilsher v Essex Area Health Authority - junior doctor judged at same standard as a fully qualified one
Risk Factors
Certain factors may lower or raise the standard of care
-Has claimant any special characteristics
-What was the size of risk
-Have all appropriate precautions been taken
-Were the risks known about at the time of accident
-Is there a public benefit to taking the risk
Risk factors - Special Characteristics
-Paris v Stepney Borough Council - consequence of injury to eye was more significant as he was already blind in one eye
Risk Factors - Size of Risk
-Higher risk of injury, the greater amount of precautions that need to be taken.
-Where risk is small, defendant will be expected to take less precaution.
-Bolton v Stone
Risk factors - Adequate Precautions
-Courts will consider the balance of risk involved against the cost and effort of taking adequate precautions to eliminate the risk.
-Latimer v AEC Ltd
Risk Factors - Were the risks known?
-If the risk of harm is not known, there can be no breach
-Roe v Minister of Health
Risk factors - Public Benefit
-If there is an emergency, greater risks can be taken
-Lower standard of care accepted
-Accept situation could have been handled differently in hindsight but due to circumstances the acts were reasonable
-Watt v Hertfordshire County Council
Damage
-Claimant must prove that damage suffered was caused by breach of duty
-Both factual and Legal causation must be proved
Damages - Factual causation
-The idea that the breach of duty has caused the injury or damage being claimed
-If factual causation cannot be proved then there is no consideration for legal
-Decided via use of ‘But for’ test
-Barnett v Chelsea and Kensington Hospital Management Committee
Damages - Legal Causation
Intervening acts:
- Act of a claimant - Mckew v Hollands
- Act of nature - Carslogie Steamship Co v Royal Norwegian Government
- Act of a third party - Knightly v Johns
