Liability in negligence for injury to people/ damage to property (2.2.2)

Question 1

What are the 3 stages that must be proved in order to successfully make a negligence claim?

Answer 1

-duty of care was owed
-there was breach of that duty of care
-damage caused

Question 2

In order to prove duty of care, what are the 3 things that must be proven (Comparo test)?

Answer 2

-Harm which is reasonably foreseeable
-Sufficient proximity between the parties
-Is it fair, just and reasonable to impose a duty of care?

Question 3

What is the neighbour principle and what case does it originate from?

Answer 3

-the person who is owed duty or care by the defendant, is not the person living next door but anyone you ought to have in mind who might potentially be injured by your act or omission
-Donoghue v Stevenson (1932)

Question 4

Describe the case of Donoghue v Stevenson (1932) in relation to the neighbour principle

Answer 4

-Mrs Donoghue suffered physical/mental injuries as she drank a drink, purchased by a friend that contained a dead, decomposing snail
-As she couldn’t sue the story owner, she sued the manufacturer in negligence
-Manufacturer was found liable and the case created the neighbour principle

Question 5

Describe the case which demonstrates the first stage of the comparo test - harm which is reasonably foreseeable?

Answer 5

Kent v Griffiths (2000)
-Kent was pregnant and had asthma, ambulance took 38 minutes to arrive
-As a result Kent suffered memory impairment, personality change and miscarriage
-It was found that the Ambulance service owed duty of care, as her being injured further was reasonably foreseeable and there wasn’t a good reason as to why ambulance took so long.

Question 6

Describe the case that demonstrates stage two of the comparo test - sufficient proximity between the parties?

Answer 6

Bourhill v Young (1943)
-Mr Young was responsible for a motorcycle collision
-Mrs Bourhill approached the scene when Mr Young’s body was removed and saw the immediate aftermath
-She brought action to Mr Youngs estate for stress and sustained shock
-Mr Youngs estate was not found liable as her psychiatric form was not foreseeable and it was her choice to approach the scene even though she has no relation to the victim

Question 7

Describe the case that demonstrates the third stage of the comparo test - is it fair, just and reasonable to impose a duty of care?

Answer 7

Hill v Chief constable of West Yorkshire (1990)
-Hills 20 year old daughter was attacked and died of injuries
-Attacker was a repetitive murderer over the last years
-Hill claimed damages for negligence on the grounds that the police failed to apprehend and prevent the murder despite having information on the culprit
-Appeal was dismissed as police don’t owe a duty of care to individuals who suffer from criminals activity.

Question 8

How does a defendant breach their duty of care?

Answer 8

If they fall below the standard of care appropriate to the degree of risk in the situation that resulted in injury/loss
Did the defendant act in a way that a reasonable person would in the same situation?

Question 9

In order to determine if a defendant has breached their duty of care, risk factors are considered, what are these risk factors?

Answer 9

-Degree of probability that harm will be done
-The magnitude of likely harm
-The cost and practicality of preventing risk
-Potential benefits of the risk

Question 10

Describe the case that relates to the risk factor: Degree of probability that harm will be done

Answer 10

Bolton v Stone (1961)
-Claimant hit by a cricket ball outside of the grounds, happened extremely rarely
-Defendant found not in breach of duty of care as probability that harm would be done was low

Question 11

Describe the case that relates to the risk factor: Magnitude of likely harm

Answer 11

Paris v Stepney Borough Council (1951)
-Paris was blind in one eye, no protective gear provided by employer, got blinded in good eye during work
-Employer was found to be liable as more precautions should have been taken

Question 12

Describe the case that relates to the risk factor: the cost and practicality of preventing risk

Answer 12

Latimer v AEC Ltd (1953)
-Owner used sawdust to reduce effects if a flood, employee fell and was injured
-Not found liable as only way to avoid risk would be to close, which is not proportionate to the risk

Question 13

Describe the case that relates to the risk factor: Potential benefits of the risk

Answer 13

Daborn v Bath Tramways (1946)
-claimant injured when hit by a left hand drive ambulance without indicators on
-held there was a lower standard of care as the ambulance driver was acting in the public good

Question 14

What is the standard of care for learner drivers? (Special characteristics)

Answer 14

Learner drivers are held to the standard of care to that of a fully competent and experienced driver

Question 15

What is the standard of care for professionals? (Special characteristics)

Answer 15

They are held to the standard of care expected of a typical skilled member of that profession

Question 16

What is the standard of care of children? (Special characteristics)

Answer 16

They are held to the standard of care to that of an ordinarily careful and reasonable child of the same age

Question 17

Describe the case which relates to the special characteristic: learner drivers

Answer 17

Nettleship v Weston (1971)
-passenger injured when the car was crashed
-held to the standard of care of a experienced driver

Question 18

Describe the case that relates to the special characteristic: professionals

Answer 18

Bolam v Friern Hospital management committee
-patient had not been given a muscle relaxant/restraint because electro-convulsive therapy and was injured
-doctor found to not have breached his duty

Question 19

Describe the case that relates to the special characteristic: children

Answer 19

Mullin v Richard (1998)
-girls play fighting with plastic rulers, one snapped blinding one girl in the eye
-defendant was not negligent as behaviour was reasonable for that age

Question 20

I’m order to prove that some sort of damage was caused by the defendants breach of duty and it was reasonably foreseeable, what 2 issues are looked at?

Answer 20

Causation (legal and factual)
Remoteness of damage

Question 21

Explain how factual causation is determined?

Answer 21

Using the ‘but for’ test - if it wasn’t for the breach of duty, would the damage have still occurred?

Question 22

Define remoteness of damage

Answer 22

The damage must be reasonably foreseeable from the negligence of the defendant

Question 23

Describe the case associated with factual causation and the ‘but for’ test

Answer 23

Barnett v Chelsea + Kensington Hospital management committee (1969)
-Doctor didn’t see patient when complaining of sickness, and died later on
-Evidence showed the man was going to die regardless if he was treated or not so the claim failed

Question 24

What is sometimes the effect of an intervening cause (e.g. a natural event or third party)?

Answer 24

Sometimes the law does not impose liability for negligence if there is an intervening cause that breaks the chain of causation

Question 25

Describe the case that relates to remoteness of damage

Answer 25

The Wagon Mound (1961)
-Fuel oil spilled from ship into harbour, welders were carrying out repairs on another ship when the oil caught fire burning down the claimants ship
-Fire damage was too remote from the original negligent act so claim failed

Question 26

What does the phrase ‘take your victim as you find him’ (the eggshell rule) mean?

Answer 26

If the type of injury was reasonably foreseeable but is more serious due to a pre existing condition the defendant is liable for the subsequent consequences

Question 27

Describe the case related to the eggshell rule

Answer 27

Smith v Leech Brain and Co (1962)
-employee was in work and molten metal burnt his lip, developing cancer and dying years later
-had a cancerous condition before the burn took place
-defendants found to be negligent and liable as the injury was foreseeable regardless of the pre existing condition

Question 28

What does novus actus interveniens mean?

Answer 28

An intervening act to break the chain of causation

Question 29

How is legal causation proved?

Answer 29

By establishing whether the defendant’s actions or omissions were a legal cause of the harm or damage suffered by the victim.