Liability in Negligence

Question 1

briefly explain liability in negligence

Answer 1

if D causes harm to C through a negligent act or omission they may be liable and have to pay damages

negligence is defined in Blyth v Birmingham Waterworks as “failing to do something which the reasonable person would do or doing something that the reasonable person would not do”

in order to establish liability in negligence, the claimant must prove on the balance of probabilities that…

1. they were owed a duty of care
2. the defendant was in breach of duty
3. the claimant suffered damage caused by D which was not too remote

Question 2

duty of care

Answer 2

it is a legal relationship between parties that must be established in a negligence claim

can be established through a statutory obligation or an existing precedent such as between doctor and patient or parent and child

the Caparo test has replaced the neighbour principle and helps establish a duty of care

Question 3

duty of care: neighbour principle

Answer 3

Donoghue v Stevenson (1932) provided the first general rule for determining duty of care based on the neighbour principle

set out the key rules for establishing liability in negligence…

1. must be a duty of care owed to the claimant by the defendant
2. breach of that duty is falling below the appropriate standard of care
3. damage caused by the defendant’s breach must not be too remote

the neighbour principle is the idea that we must take reasonable care to avoid acts and omissions that might affect our ‘neighbour’ aka someone who we might reasonably foresee to be in danger of being affected by our actions if we are negligent

Question 4

duty of care: the caparo test

Answer 4

Caparo v Dickman (1990) set out a three stage test to establishing a duty of care that has replaced the neighbour principle…

1. was the harm reasonably foreseeable?
2. is there sufficient proximity between the claimant and the defendant?
3. is it fair, just and reasonable to impose a duty?

Question 5

1. was the harm reasonably foreseeable?

Answer 5

an objective test

a reasonable person in the defendant’s position must have foreseen such harm as a possibility

CASE = Kent v Griffiths
V suffered an asthma attack but the ambulance was 30 minutes later than it should’ve been so V’s condition worsened, damage was reasonably foreseeable so a duty of care was owed

Question 6

2. is there sufficient proximity between the claimant and the defendant?

Answer 6

the parties need to be connected closely enough in either time, space or relationship

CASE = Bourhill v Young
a pregnant woman miscarried after hearing an accident from around the corner and seeing the aftermath, there was not sufficient proximity so no duty of care was owed

Question 7

3. is it fair, just and reasonable to impose a duty?

Answer 7

this is a policy based decision in which judges take into account the best interests of society when deciding whether to impose a duty

CASE = Capital & Counties v Hampshire CC
fire services turned off the sprinklers during a fire and the whole building was destroyed, they made the danger worse so it was FJR to impose a duty

Question 8

breach of duty

Answer 8

the claimant must prove the the duty of care has been broken

made up of 2 parts:

• objective standard of care — compare D’s conduct with the standard of care expected from a reasonable person
• consider risk factors that may raise or lower the standard expected

Question 9

objective standard of care

Answer 9

D will have breached their duty of care if their conduct falls below the standard of care expected from a reasonable person

Blyth v Birmingham Waterworks established that D will have breached their duty if they have done something which “a reasonable man would not do”

Glasgow Corporation v Muir established that if D acted as a reasonable person would’ve done then there is no breach

Question 10

objective standard of care: special characteristics

Answer 10

it’s an objective test but in some cases D may possess special characteristics…

• children must be judged against other reasonable children
• amateurs must be judged against other reasonable amateurs doing the same task
• learners are judged at the standard of fully qualified persons in the same field
• professionals and experts must be judged against other competent experts in the same field

Question 11

children

Answer 11

children must be judged against other reasonable children

CASE = Mullins v Richards

Question 12

amateurs

Answer 12

amateurs must be judged against other reasonable amateurs doing the same task

CASE = Wells v Cooper

Question 13

learners

Answer 13

learners are judged at the standard of fully qualified persons in the same field

CASE = Nettleship v Weston

Question 14

professionals and experts

Answer 14

professionals and experts must be judged against other competent experts in the same field

a substantial body of professional opinion must support D’s course of action

CASE = Bolam v Barnet Hospital

Question 15

risk factors

Answer 15

risk factors can raise or lower the standard of care expected from a reasonable person…

• special characteristics of the claimant
• size of risk
• appropriate precautions
• known risks
• potential benefits

Question 16

special characteristics of the claimant

Answer 16

can raise the standard of care expected if the victim is particularly vulnerable

CASE = Paris v Stepney BC

Question 17

size of risk

Answer 17

can raise the standard of care expected if the danger is particularly high or lower the standard if the danger is quite small

CASE = Bolton v Stone

Question 18

appropriate precautions

Answer 18

the court will consider the balance of the risk against the cost and effort of taking adequate precautions to eliminate the risk

CASE = Latimer v AEC Ltd

Question 19

known risks

Answer 19

if a risk of harm is not known, there can be no breach in duty

CASE = Roe v Minister of Health

Question 20

potential benefits

Answer 20

the standard may be lower if there is greater public benefit e.g. in an emergency

CASE = Day v High Performance Sports

Question 21

compensation act 2006

Answer 21

a court considering whether D should have taken steps to meet a standard of care must consider whether requiring D to do so may prevent a desirable activity from being undertaken

seeks to discourage claims where there is a public benefit to the activity concerned

in Day v High Performance Sports there was an emergency, the courts would not want to discourage people from rescuing others

Question 22

damage

Answer 22

damage means the loss suffered by the claimant

the claimant must suffer damage caused by D’s breach or there cannot be a claim

damage must not be too remote

both factual and legal causation must be proved in order for a claim to succeed

Question 23

factual causation

Answer 23

there must be a link between D’s breach in duty and the damage suffered by the claimant

proved using the but for test…
• D is liable if the damage would not have happened but for their breach of duty
• if it would’ve happened anyway then D is not liable
• CASE = Chester v Afshar

the but for test is not always straightforward to apply, especially where there are multiple causes of the damage…
• CASE = Wilsher v Essex AHA

Question 24

legal causation

Answer 24

the damage suffered must not be too remote….

• intervening acts
• remoteness of damage
• thin skull rule

Question 25

intervening acts

Answer 25

an intervening act can arise from the actions of a claimant or third party, breaking the chain of causation and relieving D of liability

CASE = Knightley v Johns

Question 26

remoteness of damage

Answer 26

claimant can only claim for types of loss that are reasonably foreseeable

CASE = The Wagon Mound (No 1)

the extent of the damage or the way in which it happened does not have to be reasonably foreseeable

CASE = Hughes v Lord Advocate

Question 27

thin skull rule

Answer 27

D must take their victim as they find them

if the type of injury or damage is reasonably foreseeable but it is made more serious by the claimant’s pre existing condition then D is liable for all the subsequent consequences

CASE = Smith v Leech Brain

Question 28

res ipsa loquitur

Answer 28

can only be used in situations where it’s difficult for the claimant to know exactly what happened even though it’s obvious that the defendant has been negligent

res ipsa loquitur means “the thing speaks for itself”

claimant must show 3 things…

1. D was in control of the situation that caused the damage
2. the damage would not have happened unless someone was negligent
3. there is no other explanation for the damage

if the claimant shows these then the burden of proof shifts from the claimant to the defendant who must then prove that they were not negligent

CASE = Scott v London and St Katherine Docks

Question 29

duty of care evaluation

NO DUTY OF CARE ON THE POLICE

Answer 29

a strength of duty of care is that the courts are reluctant to impose a duty of care on publicly funded bodies like the police

the police do not owe a duty of care to the general public because the threat of liability may prevent them from doing their jobs properly and effectively

for example, in Hill v CC West Yorkshire, the family of the last Yorkshire Ripper victim claimed police have been negligent in their detention of Sutcliffe. however, the courts ruled that the police did not have a duty of care to the general public

if they did have a duty this may limit their ability to prevent crime and protect the public so not having a duty of care has a wider benefit to society

HOWEVER, a disadvantage of this is that it may give the police a blanket immunity from claims of negligence. arguably, they should be held accountable for some serious and unreasonable choices

Question 30

duty of care evaluation

HIGH VOLUME OF CLAIMS

Answer 30

another strength is that the courts are reluctant to impose a duty if it would give rise to high volume of claims

for example, in Alcock v CC of West Yorkshire, the family of victims of the Hillsborough Disaster tried to claim for shock after viewing news footage of the dead

but in order to prevent the floodgates from opening, the courts ruled that the claims could only be made by those who witnessed the aftermath with their own senses

this is an advantage as a huge number of claims cost significant amounts of money and time to deal with which is not beneficial to the claimants or the courts who already have a huge workload of other cases to deal with

HOWEVER, this approach can be seen as being overly harsh as it does not take into account the need to compensate these families for a tragedy that was not their fault

Question 31

duty of care evaluation

DUTIES CAN ACT AS A DETERRENT

Answer 31

a disadvantage is that the courts will sometimes impose a duty of care to act as a deterrent

this can be disadvantage because it’s not morally acceptable to exaggerate someone’s liability just to deter others in the future

moreover, in many cases claims are absorbed by insurers and do not deter wrongdoing at all

HOWEVER, a benefit of this is that it encourages others to be more responsible in order to avoid liability which has a positive influence on future conduct

for instance, in Smolden, the claimant suffered a broken spine after a referee allowed several unsafe scrums during a rugby match. the courts imposed liability against the referee for failing to ensure a player’s safety

this can ensure that other referees in the future do not make the same mistake

Question 32

duty of care evaluation points

Answer 32

no duty on the police

high volume of claims

deterrent

Question 33

breach of duty evaluation

OBJECTIVE STANDARD

Answer 33

an advantage of breach of duty is that the standard of care is objective

this means that D is only expected to behave as a reasonable person would in that situation, they are only liable if their conduct falls below that of the reasonable person

for example, Blyth v Birmingham Waterworks established that D will have breached their duty if they have done something which “a reasonable man would not do”

it was also stated that “the reasonable man is not foolhardy but nor is he excessively cautious” which is fair to D as they simply have to act reasonably

HOWEVER, it can be argued that judges merely impose their own standard of care because what is deemed reasonable to one person may not be reasonable to another

Question 34

breach of duty evaluation

DETERRENTS

Answer 34

another advantage is that breach of duty acts as a deterrent and prevent similar negligent behaviour in the future

people want to avoid potential claims so will take more care and be more responsible in order to avoid breaching their duty

therefore, this has a positive influence on future contact

for example, in Haley v LEB, a blind man fell into a hole dug on the pavement as he could not see the hammer which are been propped up to warn passers-by. it was held that greater precaution should’ve been taken so D was in breach of duty

this produces an incentive to other companies to take more care when carrying out work in a public place and helps prevent negligent conduct in the future by acting as a deterrent

HOWEVER, liability should really be based on the facts of each case rather than discouraging others. it’s unfair to exaggerate someone’s liability just to deter someone else

Question 35

breach of duty evaluation

LEARNERS

Answer 35

a disadvantage of breach of duty is that there is potential unfairness in expecting the same standard of care of a fully qualified person from an inexperienced defendant

for example, in Nettleship v Weston, it was held that the learner must have the same standard of care as a fully qualified driver so the defendant did have a breach in duty.

it is not fair to expect a learner driver to have the skills of fully qualified and experienced driver

HOWEVER, if they weren’t held to the same standard of care then there would be a greater public risk

so having learners and experienced people held to the same standard ensure that factors such as inexperience cannot deny a claim

learners should still be held accountable for their negligence

Question 36

breach of duty evaluation points

Answer 36

objective standard

deterrence

learners

Question 37

damages/causation evaluation

BUT FOR TEST

Answer 37

a disadvantage of damages is that the but for test can be difficult to apply to a case where there are multiple causes of the damage

this may result in a claimant not receiving compensation where causation cannot be established yet the defendant is still at fault which is unfair

for example, in Wilshire v Essex AHA, a premature baby received negligent treatment in hospital which may have been one of the causes of its blindness. but there were so many possible factors which might caused the damage so it was not possible to prove causation

HOWEVER, the but for test is easy to apply when there is a single cause and can exclude people from liability if they have not contributed to the outcome

Question 38

damages/causation evaluation

FAIR PRINCIPLES

Answer 38

another advantage is that the principles of causation are generally fair

this is because they are aimed at compensating the claimant for loss that is foreseeable and attributable to the defendant

for example, in Chester v Afshar, a patient with a severe spinal disorder was not warned her condition could worsen before undertaking surgery and she would’ve refuse to undergo the procedure if given a warning

which meant that the doctor was the factual cause of the worsened injury

HOWEVER, where causation cannot be established a defendant can escape liability despite the fact that they have been negligent

this does not deter negligence in future cases and is unfair to the claimant who may be uncompensated

Question 39

damages/causation evaluation

RULES ON REMOTENESS

Answer 39

an advantage of damages is that the rules of remoteness of damage can be seen as unfair

this is because the defendant may escape some liability as it depends on the judges interpretation of what type of damages are foreseeable

this creates uncertainty because what is foreseeable to one judge may not be foreseeable to another

for example, in Wagon Mound, it was ruled that the type of damage must be reasonably foreseeable. damage by oil pollution was foreseeable but damage by fire was not

another judge could’ve interpreted this another way and come to a different conclusion

HOWEVER, this can also be argued to be fair because the defendant should not be responsible for unforeseeable damage

Question 40

damages/causation evaluation points

Answer 40

rules of remoteness

but for test

fair principles

Question 41

extra evaluation point for all essays on negligence: COST

Answer 41

a disadvantage is that claims can be difficult or costly

largely because evidence will be required to show exactly how the injuries occurred and that they were caused by the defendant

evidence could be given by an expert who will need to be paid

in addition, medical evidence may be required to show the extent of the injuries and the effect on the victim in the future

if property is lost or damaged valuations may have to be obtained

covering all of these costs in order to prove fault can be overly expensive and may prevent many claimants from bringing a case to court out of fear of the costs

Question 42

ideas for reform

Answer 42

no fault compensation schemes

alternative dispute resolution

Question 43

no fault compensation schemes

Answer 43

an idea for reform is to introduce no fault compensation schemes to replace the fault based system

it is a state run benefit scheme that pays victims compensation without the need to prove how or why the accident occurred

this could be funded by general taxation or by a levy on motorists or employers

there will be no need to pay lawyers costs so it would be cheaper, quicker and less confrontational

in New Zealand…
• there is a scheme which covers injuries in all sorts of areas
• a range of benefits are paid out to victims for medical treatment or loss of earnings
• the cost is met by levies on employees, general taxation and from the government on behalf of non earners

a similar scheme to the New Zealand model was recommended for the UK by the Pearson Commission in 1975 but has never been adopted

Question 44

alternative dispute resolution

Answer 44

another idea for reform is ADR

mediation but could be used for personal injury claims to ease confrontation rather than taking the defendant to court

online dispute resolution is a way of speeding up the claims process without parties going to court

the compensation act 2006 encourages ADR to settle disputes and stop claims being brought to court