Liability in negligence

Question 1

What is required to prove negligence?

Answer 1

1. Duty of care
2. Breach of duty
3. Damage (caused foreseeable loss or injury)

Question 2

What is a duty of care?

Answer 2

A link between the defendant and the claimant which imposes a legal obligation for them to act carefully.
About establishing a legal relationship between them.

Question 3

What happened in Donoghue V Stevenson?

Answer 3

Established the neighbour principle to decide who owed a duty of care.
‘A person so closely and directly affected by your actions they should be considered when doing the act or omission.’

Question 4

What happened in Caparo industries V Dickman?

Answer 4

Created the new 3 part test to establish a duty of care.

Question 5

What is the Caparo test?

Answer 5

1. Was damage reasonably foreseeable?
2. Was there sufficient proximity between the claimant and the defendant?
3. Is it just and fair to impose a duty of care?

Question 6

What is meant by was damage reasonably foreseeable?

Answer 6

Is it foreseeable that a person in Cs position would suffer damage as a result of Ds acts/ omissions?
(Kent V Griffiths)

Question 7

What happened in Kent V Griffiths?

Answer 7

Was foreseeable that the victim would suffer harm or injury when an ambulance failed to turn up within a reasonable amount of time.

Question 8

What is meant by was there sufficient proximity between the claimant and defendant?

Answer 8

Proximity requires that they have a legal connection or relationship this can be in distance, time or space.
Only need to prove one.
(McLoughlin V O’brian)

Question 9

What happened in McLoughlin V O’Brian?

Answer 9

Successfully claimed for nervous shock when a lorry driver had seriously injured her family, even though she did not witness it she had still suffered psychiatric injury.

Question 10

What is meant by is it just and fair to impose a duty of care?

Answer 10

Would it be in the best interests of society to impose a duty of care, sometimes fear that allowing a case to go ahead would open the law too wide and flood the courts. Public policy.
(Griffiths V Lindsay)

Question 11

What happened in Griffiths V Lindsay?

Answer 11

Not fair for a taxi driver to owe a duty of care to a drunk passenger who ran out and was run over as a result.

Question 12

What is a breach of duty?

Answer 12

They have failed to reach the standard of care expected by the reasonable man.
They must have done an act/omission that fell below the standard of care expected by them, this is known as a breach of duty.

Question 13

Whats the two-stage test used for deciding whether or not a professional has fallen below the standard of care expected?

Answer 13

1. Does the conduct fall below the standard of a reasonable, competent professional?
2. Is there a substantial body of opinions within the professions that support their actions?
   (Bolam)

Question 14

What happened in Nettleship V Weston?

Answer 14

Leaner crashed, decided leaners were held to the standard of a competent person.

Question 15

What things do the court take into account when looking at the standard of care expected?

Answer 15

1. The defendants age- young person does not have to reach the same standard of care as an adult. (Mullins V Richard)
2. The defendant’s profession (Bolam test)
3. Characteristics of the claimant- If the claimant is at more risk of being harmed they owe greater standard of care. (Paris V Stepney)
4. The magnitude of the risk- Likelihood of harm is small act is not negligent.
5. Defendant has taken reasonable precautions- Not negligent if they have taken precautions. (Latimer V AEC)

Question 16

What is factual causation?

Answer 16

‘But for’ D breach of duty would the claimant have suffered harm or injury?
(Barnett V Kensington hospitals)

Question 17

What happened in Barnett V Kensington hospitals?

Answer 17

Doctor did not examine patients who had arsenic poisoning.

Was not convicted as if he didn’t examine them they would have died anyway.

Question 18

What is the but for test?

Answer 18

Must be proved that the claimant would not have suffered damage if not for the defendants acts/omissions.

Question 19

What is meant by remoteness of damage?

Answer 19

Only damage that is reasonably foreseeable can be claimed for.
( Wagon Mound)

If they suffer an extreme form of RF damage they will still be liable.
(Bradford V Robinson)

Thin skill rule (Smith V Leech Brain)

Question 20

What are intervening acts?

Answer 20

When something happens that breaks the link between D’s conduct and the damage.

Question 21

What happened in Baker V Willoughby?

Answer 21

Defendant was liable for all losses and reduced earnings even after the amputation as if not for the negligent driving he never would have lost his leg. The shooting was not an intervening act.

Question 22

What happens when there are multiple causes?

Answer 22

When there are a number of possible causes of the damage, it can be particularly difficult as the ‘but-for test’ does not work.

Question 23

What happened in Wilsher V Essex area health authority?

Answer 23

Claimant had gone blind, evidence showed that there was 6 possible causes.
Doctors negligence was only one possible cause therefore he was not negligent.

Question 24

What happened in the Wagon Mound case?

Answer 24

A negligent oil spill from the defendants tanker had floated into a nearby wharf. Sparks from the welding ignited some cotton laying in the oil and set fire to the wharf.
Not liable as the damage caused was too remote from the negligent act.

Question 25

How much needs to be foreseen?

Answer 25

So long as the type of damage/injury is foreseeable it does not matter if the way in which it occurred is not foreseeable. Hughes V Lord advocate.

Question 26

What is the thin skull rule in negligence?

Answer 26

If the claimant suffers more harm due to a pre-existing condition the defendant will be liable for the full extent of the injuries.
Smith V Leech brain and Co.

Question 27

What is Res Ipsa Loquitur?

Answer 27

General rule is that the claimant must prove all three elements, in situations where its difficult to do this as they are unaware of where the negligence took place, burden of proof may shift over to the defendant to prove that they have not been negligent.
Scott V London and St Katherine docks.