Liability In Negligence For Personal Injury And Damage To Property Flashcards
What’s the idea of a duty of care in the tort of negligence?
To establish a legal relationship between the claimant and the defendant
What case does the modern law of negligence come from?
Donohuge v Stevenson - Mrs Donohuge drank ginger beer which contained a snail in the bottle. This led to both physical and psychological injuries. She sued the manufacturer in negligence, claiming they were at fault and owed her a duty of care.
What principle did Donohuge v Stevenson create?
The neighbour principle - the person who is owed a duty of care by the defendant
What was the neighbour principle replaced by?
The 3 part Caparo test
What does the Caparo test show and what case did it come from?
Shows who is owed a duty of care in negligence and all 3 parts have to be satisfied. It came from the case of Caparo v Dickman where the HOL set the 3 stage test for owing a duty of care
What are the 3 parts of the Caparo test?
- Damage or harm reasonably foreseeable - E.g Kent v Griffiths - an ambulance took unreasonable time to arrive and take a patient to hospital - a duty of care is owed. The court decided it was reasonably foreseeable that the C would suffer more if the ambulance arrived late.
- Proximity of relationship - close in terms of time, space and relationship - Bourhill v Young - woman heard an accident where a motorcyclist died and she suffered shock when she saw blood on the road, but no duty of care is owed. HOL decided the motorcyclist couldn’t have anticipated his accident would cause mental injury to a bystander and he wasn’t proximate to Mrs Bourhill.
- Fair, just and reasonable to impose a duty - the court considers what’s best for society as a whole - Hill v Chief Constable of West Yorkshire - it was not fair, just or reasonable for police to owe a duty to the general public, it could lead to defensive policing and lower the standards of policing.
What then must the claimant prove after a duty of care is owed?
The claimant must prove the duty of care has been broken by failing to meet the required standards of care.
What standard is the required standard of care?
The standard is objective, that of the “reasonable person”.
What is the reasonable person?
The reasonable person is the ordinary person performing the task. E.g reasonable driver or doctor.
How are professionals judged and what’s a case example of this?
Professionals are judged by the standard of the profession as a whole. E.g Bolam v Fiern Barnet Hospital Management Committee - The C wasn’t given relaxant drugs during an electric shock treatment. One medical opinion favoured relaxant drugs, and the other said that drugs should only be used for a reason which wasn’t present in this case. The court decided that as the hospital had followed one of these opinions, it hadn’t breached a duty of care.
How are learners judged and what is the case example to show this?
Learners are judged at the standard of a more experienced person. In Nettleship v Weston - during a driving lesson Mrs Weston hit a lamppost, injuring Mr Nettleship. The Court decided she had breached her duty of care to Mr Nettleship. She was judged at the standard of a competent driver, not an inexperienced learner.
How are children and young people judged and what is the case to show this?
For children and young people, the standard is a reasonable person of the defendants age at the time of the accident. In Mullins v Richard two 15 year old schoolgirls were play fighting with plastic rulers, one of them snapped and entered one of the girl’s eye, blinding her. The court decided that the other girl had to meet the standard of a 15 year old schoolgirl and not a reasonable adult. She reached the required standard, so hadn’t breached a duty of care.
What are risk factors?
When the court decides there’s been a breach of duty, it will consider certain factors to decide if the standard of care should be raised or lowered. These include special characteristics, the size of the risk, appropriate precautions and public benefit.
What a case example of special characteristics?
In Paris v Stepney Borough Council, Mr Paris was known to be blind in one eye. While working he wasn’t given protective googles, so he became completely blind. His employers were held to have broken their duty of care to him, as they knew the consequences of injury to his good eye would be serious and should’ve taken greater care to provide goggles.
What’s a case example of the size of the risk?
Where the risk is small it’s unlikely there’s a breach of duty. In Bolton v Stone a cricket ball hit a lady outside a cricket ground surrounded by a 17 foot high fence. It was found that due to the low number of times balls had been hit outside, the cricket club hadn’t breached its duty of care, as there was a low risk.
