liability in negligence Flashcards
what is negligence
negligence is the failure to take proper care.
this covers situations where a person is injured, or property is damaged as a result of an accident.
- established at common law so there is no act pot parliament
who does the burden of proof lie with?
the burden of proof is on thew claimant
what is the standard of proof
on the balance of probabilities
what is the three part test for negligence
- duty of care
- breach of duty
- caused damage
how to prove duty of care
the claimant must prove that the defendant owed them a duty of care, what relationship exists between them.
what is the historical development of duty of care?
donoghue v stevenson- dead snail in ginger beer
lord Atkins principle- must take reasonable care to avoid acts or omission which you could force might injure somebody.
foresight
can you forsee someone being effected through the act or omission
proximity
time and space, both at scene of accident
- legal relationships- doctor/patient
Bourhill v young- pregnant woman witness aftermath of accident and had miscarriage and no legal relation with D
three part test to establish if D owes a duty of care
case- Robinson v CCWY- elderly lady suffered injuries when knocked to ground during arrest on drug dealer by police officer- police liable
-statute
-precedent/ analogy
- noval situations
what is statute and examples
where an act of parliament imposes a duty of care- statutory duty
local bylaws can impose duties such as speed limits
example Road Traffic act 1988
what is precedent/analogy and give examples
precedent is a judgment in a previous case that sets out the law for future cases.
contractual- parent/ child, acceptance of care, creation of danger.
example- wells v Cooper- doorhandles
Analogy- analysis of similar cases e.g. a case of skateboarder, likely a scooter rider should owe a duty of care too.
example- Darnley v croydon NHS
what are Novel situations and give example
neighbour principle- fair and reasonable to impose a duty of care, gives courts discretion and floodgates-compensation.
courts will look at fore/ prox in neighbour, look in other cases to see if judges have explained if they think it is fair or outside of box.
how does one know if they have breached duty of care
once it has been shown that D owes a duty of care, the claimant must prove that the D breached their duty of care
what is an objective standard
this is where the D is judged objectively and see if an ORP would or wouldn’t have done the same in the same situation, if yes they would have there would be no breach.
example- Blyth- water hydrant burst due to weather conditions.
breach of duty- professional defendant
Did Ds conduct fall below the standard fall below the standard of the ordinary competent member of that profession.
if same as D there would be no breach
example- Bolam v friern
breach of duty- Amateur/ learner defendant
judged against the standard of reasonable qualified competent person undertaking that task.
example- wells v Cooper
breach of duty- child defendant
if D is a child, they are expected to reach the standard of a reasonable person of the Ds age at the same time of the accident
example- orchard v lee
breach of duty- risk factors
special characteristics- more vulnerable a claimant, higher standard of care owed
example Paris v Stepney
size of risk- higher risk of injury, higher standard of care owed, vice versa.
example- haley v LEB
adequate precautions- no need to incur expense to eliminate every possible risk of injury
example- Latimer v AEC
policy- if there is a social benefit such as an emergency then greater risks can be taken and lower standard of care accepted.
example- watt v Hertfordshire cc
caused damage
the claimant must prove that Ds breach caused their injury or damage to property through
-factual causation
-legal causation
-novus actus interveniens
what is factual causation
established through a ‘but for’ test.
but for the breach of duty, would the claimant have suffered the damage.
example- Barnett v c and k- drank arsenic as tea was poisoned, doctors turned them away.
what is legal causation
remoteness of damage- only reasonably foreseeable damage can be claimed for, even if there is factual causation.
- if type of damage is foreseeable, doesn’t matter if the precise way it happened was not
example- Hughes, left light in tent, boy tripped causing explosion.
what are novas acts interventions
claimants own act- if Ds actions are unreasonable
- 3rd party- only breaks chain if not reasonable
-nature- only breaks chain if not foreseeable
-thin skull rule- take claimant as you find them
example-Paris
what are the defences for liability in negligence
contributory negligence- law reform, 2 part test
1) c failed to take care of own property
2)failure to take care contributed to the damage suffered, judge decides % reduction
example- Nettleship v western, damages reduced by 50%
second defence
volenti/consent- two part test
1) was c aware of the risk
2)was the risk accepted freely
