Negligence 1 Flashcards
What does culpa mean?
Fault
The three requirements of negligence
- Duty exists
- Duty has been breached
- Breach is the cause of the loss (causation)
what is an omission
failure to act = failure to take care in the circumstances created
Tofaris & Steel, Negligence Liability for Omissions and the Police, (2016) 75 CLJ 128
person A is not under a duty to prevent harm occurring to person B if it is a danger that was not created by A.
UNLESS
i. A has assumed responsibility to protect B from danger
ii. A has done something of which prevents another from protecting B
iii. A has a special level of control over that source of danger
iv. A’s status creates an obligation to protect B from that danger
What is proximity
if there is a relationship of proximity - a duty of care exists
Mitchell v Glasgow City Council [2009] UKHL 11
Proximity
Hill v Chief Constable of West Yorkshire [1989] AC 53
Lack of Proximity
McKillen v Barclay-Carle & Co Ltd 1967 SLT 41
thin skull rule
take your victim as they come
Ways in which you can determine if a duty of care is owed?
Foreseeability
Proximity
Waugh v James K Allen Ltd (1964) SC (HL) 102
to breach a duty the conduct must have been voluntary.
heart attack while driving - involuntary act and thus not liable
Mansfield v Weetabix Ltd 1998
driver loses control of vehicle and was unaware of his condition and thus not liable.
Muir v Glasgow Corporation
standard of care varies with the risk involved, probability of injury and potential harm
test for the standard of care?
objective -
that of the ordinary reasonable person in the circumstances of the defender
likelihood of the act occurring
foreseeability of the damage
where will the highest standard of care apply?
where there is a high probability of mass damage
what must the pursuer do to demonstrate the defender was negligent?
pursuer needs to say what the standard of care was - where the defender was negligent and what precautions should have been taken
Gillon v Chief Constable of Strathclyde Police (1997) SLT 1218
police officer sued employer for breach of duty
she had to stand on the side of a football park and watch the crowd - got hit by a footballer.
argued that she was placed in danger by being told to face away from the pitch.
duty of care exists but, FAILED as that was her job and the reason she was there so thus there was no negligence
Samuel v Andrews [2010] EWHC 110 QB
Woman returning to parked car with two children - one child climbs over seat and dislodges hand break which results in it moving and hitting girl.
Duty of care exists however there was no negligence as it wasn’t foreseeable.
Harris v Perry [2008] EWCA Civ 907
Bouncy castle - woman in charge is not watching them 100% of the time. Boy is injured.
Pursuer argued that woman in charge should’ve been watching.
Duty of care is owed - that duty however was not breached as it was not reasonable to assume the supervisor would be able to watch the children 100% of the time.
Anderson v Imrie 2018 CSIH 18
Occupiers Liability case.
Unsupervised children playing on gate at a farm - gate falls and boy suffers injury. Mother of other child had been supervising but left for an unreasonable amount of time.
Negligence exists as the gate itself was a known danger, it was an allurement (likely the children would play on it) and it was foreseeable.
Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333
Utility of Conduct
left hand drive ambulance had sign saying no turn signals. Bus overtaking crashes into it.
Pursuer argued that driving a left hand drive was risk in itself. Held it wasn’t negligent
Brisco v SofS for Scotland 1997 SC 14
Burden (cost, inconvenience, disadvantage) of precautions.
Prison warden injured his toe while training for prison riot. However it is a dangerous environment and had the precaution that the warden pushed for been put in place, it would take away the purpose of the training.
Latimer v AEC Ltd [1953] AC 643
Burden of precautions.
Oil spill on floor, defender was responsible. Pursuer slipped and hurt his back and submitted that the defender should have shut down the factory to prevent injury.
Court held that it would have been unreasonable to shut down the factory as it would’ve caused too big of a cost and the defenders had already taken precautions to try and prevent anyone slipping.
Collins v First Quench Retailing Ltd 2003 SLT 220
Burden of precautions.
Woman working in off-licence - armed robbery and suffers psychiatric harm. Not the first time they had been robbed - event was foreseeable.
She argued employer should have put up a safety screen, Court held that this was unreasonable but it was negligent making her work alone. Fell short of the standard of care.
Brown v Rolls Royce 1960 SC (HL) 22
Usual Practice
Not conclusive
Man handles product and gets skin condition. Argues employer is negligent as they have no applied usual practice which other employers do as it is a known risk.
Defender argued Rolls Royce sought expert advice and acted as a reasonable employer although it did differ from usual practice.
