Liability in negligence

Question 1

What is the definition of negligence?

Answer 1

breach of a duty of care causing a foreseeable loss or injury.

Question 2

What are the three elements of negligence?

Answer 2

1) Duty of Care
2) Breach of Duty
3) Causation

Question 3

What is meant by a ‘duty of care’? With two key cases

Answer 3

A duty of care is a legal relationship between the parties. The test for a duty of care was first established in Donoghue v Stevenson (1932), where the neighbour principle was established.

Lord Atkin stated people should owe a duty of care to their neighbours

This was later changed in the case of Caparo v Dickman (1990), where a three-part incremental test was laid down.w

Question 4

What was the first stage of the caparo test?

Answer 4

‘The first stage is reasonabley forseeable damage or harm’

concerns the harm is reasonabley forseeable as a consequence of the acts of the D.

Case: Kent V Ghriffthns
(athsma attack long abulence wait case)

Question 5

What was the second stage of the caparo test?

Answer 5

‘Was there sufficient proximity between the parties?’

Kent v Griffiths (2000)
there was a sufficiently close relationship between the ambulance service and the claimant to establish a duty of care.

Question 6

What was the third stage of the caparo test?

Answer 6

concerns if Is it fair, just and reasonable to impose a duty of care?

This is also known as the floodgates argument as it prevents the risk of opening up a potential claim to a huge number of claimants

Robinson v CC of West Yorkshire Police (2018)

Question 7

What first established the test for breach of duty? What is this test?

Answer 7

First established in Blyth v Birmingham Waterworks (1865),

it was held that the accepted standard is that of the reasonable person. This is an objective test and asks, ‘What would a reasonable person have foreseen in this particular situation?

Question 8

What are three tests for Breach of duty?

Answer 8

(i) degree of probability that harm will be done – Bolton v Stone 1951.

(ii) the magnitude of likely harm

(iii) the cost and practicality of preventing the risk

Question 9

What are the three special catagories of people in establishing a breach of duty?

Answer 9

• Skilled defendants
• Inexperienced learners
• Children and young people

Question 10

How are ‘skilled defendants’ dealt with in these cases?

Answer 10

Skilled defendants – judged by the profession as a whole, meaning D will be liable if their conduct falls below the standard expected of the ordinary competent member of that profession:

R vs Adomako

Question 11

How are ‘inexperienced learners’ dealt with in these cases?

Answer 11

judged by the standard of the competent, more experienced person:

Nettleship v Weston (1971).

Question 12

How are ‘children and young people’ dealt with in these cases?

Answer 12

– The standard is that of a reasonable person of the defendant’s age at the time of the accident:

Nettleship v Weston (1971).

Question 13

Why is Causation needed in negligence?

Answer 13

Causation is used to prove that the damage suffered was caused by the breach of duty (factual causation) and that the loss or damage was not too remote

for causation it also has to have been reasonably foreseeable (legal causation).

Question 14

What is used to prove factual causation

Answer 14

1. The ‘But For’ test - but for the defendant’s act or omission the injury or damage would not have occurred:

R vs White

2. Novus Actus Interveniens – consider if there has been an intervening act which has broken the chain of causation, and the principle to be applied is whether the injury or damage was a foreseeable consequence of the original negligent act or omission

R vs Blaue

Question 15

What is used to prove legal causation?

Answer 15

1) Thin Skull Rule - take the victim as you find them

R vs Hayward

2) Type of injury must be foreseeable – this means that the damage must not be too remote from the original act:

Wagon Mound (No 1) (1951)

3) Scale of injury need NOT BE foreseeable – the type of injury has to be foreseeable, but the seriousness of the injury does not have to be foreseeable:

Hughes v Lord Advocate (1963)

Question 16

What is meant by Contributory Negligence?

Answer 16

corcerns if the claimant done anything to contribute to his own injuries?

If so, he may have his damages reduced by a percentage.

Question 17

What KEY case deals with breach of duty for children and inexperienced learners?

Answer 17

Nettleship v Weston

Question 18

What case is used to show that the type of injury must be forseeable

Answer 18

Wagon Mound (No 1) (1951)

Question 19

What is the case used for both the proximity element and the foreseeability element of the Caparo test ?

Answer 19

Kent v Griffiths (2000)

Question 20

What case is used the the third stage of the caparo test?

Answer 20

Robinson v CC of West Yorkshire Police (2018)

Question 21

Give an evaluative point about the precident set by Donahue v Stevnson

Answer 21

Although the case of Donoghue v Stevenson became the leading case on negligence, for many years it had to be adapted to deal with life in a more modern age.

For example in Hedley Byrne and Co, v Heller and Partners Ltd. concerned a negligent statement rather than an act or omission which was not covered in the original neighbour principle.

Therefore, the law needed further developments to be fair to both claimant and defendant in these types of situations. This
was achieved by the special relationship that had to be established between the parties.

Question 22

How did the Caparo test expand on Negligence?

Answer 22

The rules had to be further developed by Caparo into a wider test based on foreseeability, proximity and considerations of fairness and justice.

For example, the third part of the Caparo tests is a policy test which tries to limit the extent of the tort of negligence. For example in Mulcahy v Ministry of Defence, the court would not impose a duty of care in a battlefield situation.

This rule has meant courts have been reluctant to impose a duty of care on public bodies. This is arguably more fair on public body defendants than otherwise as else they may be reluctant to carry out their duties for fear of being sued.

Question 23

How has Robinson v Chief Constable of West Yorkshire Police impacted the use of the Caparo Test

Answer 23

The Supreme Court in Robinson clarified that the Caparo test is not always necessary. They explained that courts should not use the Caparo test in cases where:

Established Principles Apply: If there are already established legal principles or precedents that clearly recognize a duty of care in similar situations, there is no need to apply the Caparo test.

Incremental Development: The courts should develop the law incrementally based on existing principles rather than applying a rigid test in every new case.

Conclusion
The Robinson case indicates that the Caparo test is not a universal requirement for all negligence claims. Instead, it should be used primarily in novel situations where there is no clear precedent or established principle.
This means that in many cases, especially those involving established categories of negligence, courts can rely on existing legal principles without needing to apply the Caparo test.

Question 24

How has the Bolam Principle impacted negligence?

Answer 24

Established in Bolam v Friern Hospital Management Committee [1957]. helps determine whether a medical professional has breached their duty of care to a patient.

FOR INSTANCE: If a patient sues a surgeon for negligence, claiming that the surgery was performed incorrectly, the court would look at whether the surgeon’s methods were supported by a responsible body of surgeons. If other competent surgeons would have performed the surgery in a similar manner, the surgeon is not negligent under the Bolam Principle.

The Bolam Principle is important because it acknowledges that medicine is not an exact science and allows for professional judgment and differing medical opinions. It provides a safeguard for medical professionals against being unfairly judged for their clinical decisions as long as those decisions are reasonable and supported by their professional community