NEGLIGANCE Flashcards
1
Q
Introduction
A
- a tort is a civil wrong
- negligence = duty of care + breach of duty +damage
- the rules on negligence are based on the common law
2
Q
Element (1) - Duty of care
A
- idea of owing a duty of care was first developed in Donoghue v Stevenson
- courts narrowed the idea of duty of care by introducing the 3 part test In caparo v Dickman
- Robinson v CC West Yorkshire police said it should be reserved for new situations with no earlier precedent
- will prevent there being to many rules/different precedents
3
Q
The Caparo test - foreseeability of harm
A
- satisfied if a reasonable person would have foreseen some harm or damage to claimant
- jolly v Sutton LBC court decided that a reasonable would have foreseen some harm arising to the child by leaving an abandoned boat in park
- Top v London Bus Company - not foreseeable
4
Q
The Caparo test - the proximity test
A
- the parties must be in a sufficiently close relationship
- parties must be sufficiently close in time, space, relationship
- Bourhill v Young - claimant was a pregnant woman, who had lost her baby as a result of hearing, but not seeing an accident (claim failed as she was not close in time or space)
5
Q
The Caparo test - The public policy test
A
- third and final test “policy test”
- decide whether it is fair, just or reasonable to impose of duty of care on the defendant
- courts don’t think its fair to impose a duty of care upon large public bodies, police forces or councils (Hill v CC of W Yorkshire police)
- 2018 case of Robinson v CC of W Yorkshire police.
6
Q
Element 2 - Breach of duty of care
A
- claimant must prove that D has breached duty of care
- 3 main areas to consider (1) reasonable persons test (2) the standard of care which the court expects a reasonable person to achieve (3) risk factors
7
Q
The reasonable person test
A
- introduced in Blyth v Birmingham waterworks company
- objective test and compares D’s conduct with that of an ordinary person
- considers what a reasonable person would/wouldn’t do in a situation, to decide if the defendant has breached their duty
8
Q
Characteristics given to reasonable person and the standard of care
A
- objective test but some of D’s characteristics will and wont be attributed to the reasonable person
- will be given age (Mullins v Richard’s)
- not given if inexperienced/learner (Nettleship v Western)
- professionals are judged against the standard expected by a reasonable body (Bolam)
- people who DIY (wells v Cooper) wont be judged again a skilled tradesperson
9
Q
Risk factors
A
- (1) the likelihood of the harm occurring (Haley v London electricity board - hole on street)
- (2) magnitude (how serious) the harm may be (if harm is going to be greater because of special characteristics the claimant is expected to take more precaution)
- (3) cost and practically of taking precautions (Latimer v AEC)
- (4) benefit to society outweighs the harm (watt v Hertfordshire CC - sent out fire vehicle without being insecure)
10
Q
Element 3 - Damage
A
- D’s breach must have caused the damage as a matter of fact and law
- factual and legal causation
- court will consider if D’s breach of duty of care caused the resulting damage as a matter of fact and will consider whether the damage is too remote for damage to be held liable
11
Q
FACTUAL CAUSATION
A
- D’s act must be a factual cause of the damage
- ‘but for’ test used to decide
- show in Barnett v Chelsea and Kensington hospitals - already been poisoned with arsenic (would have died with exam anyway)
12
Q
REMOTENESS OF DAMAGE (LEGAL CAUSATION)
A
- D is not liable for any damage too remote from original act
- courts decide remoteness by applying a “reasonable foreseeable” test confirmed in The Wagon Mound No 1
- Doughty v Turner - accidentally dropped asbestos lid causing eruption harming C, damage not too remote if its foreseeable
- damage not too foreseeable if foreseeable even if happened in unexpected manner (Hughes’s v Lord Advocate)
13
Q
THIN SKULL RULE (TAKE VICTIM AS YOU FIND THEM)
A
- D liable for some harm If foreseeable but not the extent of harm Because the victim has some pre-existing condition
- shown in Smith v Leech Brain - employers were liable for allowing a piece of molten metal to burn Mr Smith, activating a pre-cancerous condition - killing him
