Liability Of Negligence: Personal Injury And Damage To Property

Question 1

Liability in Negligence: Personal injury and damage to property

Answer 1

To be liable in negligence 3 things must be proven. These are:
1) That the defendant owed the claimant a DUTY OF CARE.
2) That the defendant BREACHED THEIR DUTY OF CARE.
3) And that the breach of duty caused the
DAMAGE.

Each part must be proven in turn. All 3 must be proven for the defendant to be held liable for the injury or damage to property caused.

Question 2

Duty of Care (DOC)

Answer 2

DOC - The defendant must owe the claimant a duty of care.

• The basic idea of owing someone a duty of care in the tort of negligence comes from:
“The Neighbour Principle”
• This was laid out in:
Donoghue v Stevenson
• The neighbour principle:
“a person should take reasonable care to avoid acts or omissions that she/ he can reasonably foresee as likely to cause injury to the neighbour”.
• The modern approach for establishing a duty of care comes from the case of Caparo v Dickman in which a 3 part test was laid out:
A. The damage or harm to the claimant must be reasonably foreseeable.
This means a reasonable person would’ve foreseen some damage or harm to the C at the time of the negligence.
(Kent v Griffiths)
B. There must be sufficient proximity between the wrongdoer and the victim.
Even if the harm/damage is reasonably foreseeable, a duty of care will only exist if there was sufficient proximity between the wrongdoer and the victim. Proximity can be established through:
time, spare or relationship
Where there was proximity due to a relationship:
McLoughlin v O’Brian (1983).
C. Finally, it must be just fair, just and reasonable to impose a duty of care. (Interest in public policy)
Where it was not fair, just and reasonable to impose a duty of care:
Mulcahy v Ministry of Defence (1996)

Question 3

Breach of Duty (BOD)

Answer 3

• To breach a duty of care the defendant must have failed to reach the standard of care required which was explained in Blyth V Birmingham Waterworks (1856) as:
“that of the reasonable man”.
• The reasonable man is “the ordinary person performing the particular task”.
• Special characteristics of D which may need to be considered when deciding this:
- If D is a learner or trainee, it does not matter and they should be judged to the standard of a reasonably competent person.
Nettleship v Weston (1971)
- If D is a child they should be judged by the reasonable child of the same age.
(Mullins v Richards (1988)
- If D is a professional, he should be judged to the standard of an ordinary skilled member of their profession. Did they act in accordance with standard medical practice?
Bolam v Friern Barnet Hospital Management Committee (1957)
- But where a doctor has acted in accordance with medical practice, if the practice/opinion does not have a logical basis the doctor will be held to be negligent (Bolitho)

Question 4

Risk Factors

Answer 4

Risk factors’ are things which can raise or lower the standard of care which is owed.

1. Special characteristics of the claimant
   - If harm to a particular person are greater than for other people a higher standard of care is owed:
   Paris v Stepney Borough Council (1951)
2. The size of the risk
   - Where a risk is small it is unlikely that there will be a breach of duty:
   Bolton v Stone (1951 )
   - Where the risk of injury is high then a higher standard of care is owed:
   Hayley v London Electricity Board (1965)
3. Precautions
   - A reasonable man will take reasonable precautions to prevent an accident, especially when there is a high risk of harm:
   Latimer v AEC Ltd (1953)
4. Were the risks known about at the time of the accident?
   - If the risk of harm is not known, there can be no breach:
   Roe v Minister of Health (1954)
5. Public benefits of taking the risk
   - If the benefits of the taking the risk outweigh the potential consequences then there will be no breach:
   Watt v Hertfordshire County Council (1954)

Question 5

Damage

Answer 5

Finally, the claimant must prove that the damage suffered was caused by the breach of duty.

The two-part test used to decide whether the damage suffered was caused by the breach of duty is:
1) Causation in fact (but for test)
2) Causation in law (remoteness of damage test)

1) Causation in fact
To prove causation in fact it must be shown that: but for the defendants act or omission the claimant would not have suffered loss or harm.
(Barnett v Chelsea and Kensington Hospitals)

2) Causation in law - This is proven using the remoteness or damage test.
This means that:
“must not be too remote from the negligence of
the D”.
If damage is a foreseeable result it is not too remote:
The Wagon Mound (1961)
It does not matter if damage is extreme, if the type of damage is foreseeable:
Bradford v Robinson Rentals (1967)
If the way in which the damage occurred was not foreseeable but the type of damage was, it is not too remote:
Hughes v Lord Advocate (1963)

Question 6

The Thin Skull Rule

Answer 6

The thin skull rule means that D must take his victim as he finds them.
Smith v Leech Brain (1962)

Question 7

Res ipsa loquitur: (burden and standard of proof)

Answer 7

• The burden of proof is on the claimant.
• The standard of proof is on the balance of probabilities.

In these situation’s the rule of res ipsa loquitur can be used, which means:
“the thing speaks for itself”.

The claimant must show that:
1) The defendant was in control of the situation which caused the injury and.
2) The injury was more likely than not to have been caused by negligence.
3) There is no other explanation for the injury.

If the claimant can prove these thing’s then the burden of proof moves to the defendant who has to prove they had not been negligent.
Scott v London and St Katherine Docks (1965)