Negligence 1

Question 1

What does culpa mean?

Answer 1

Fault

Question 2

The three requirements of negligence

Answer 2

1. Duty exists
2. Duty has been breached
3. Breach is the cause of the loss (causation)

Question 3

what is an omission

Answer 3

failure to act = failure to take care in the circumstances created

Question 4

Tofaris & Steel, Negligence Liability for Omissions and the Police, (2016) 75 CLJ 128

Answer 4

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

Question 5

What is proximity

Answer 5

if there is a relationship of proximity - a duty of care exists

Question 6

Mitchell v Glasgow City Council [2009] UKHL 11

Answer 6

Proximity

Question 7

Hill v Chief Constable of West Yorkshire [1989] AC 53

Answer 7

Lack of Proximity

Question 8

McKillen v Barclay-Carle & Co Ltd 1967 SLT 41

Answer 8

thin skull rule

take your victim as they come

Question 9

Ways in which you can determine if a duty of care is owed?

Answer 9

Foreseeability

Proximity

Question 10

Waugh v James K Allen Ltd (1964) SC (HL) 102

Answer 10

to breach a duty the conduct must have been voluntary.

heart attack while driving - involuntary act and thus not liable

Question 11

Mansfield v Weetabix Ltd 1998

Answer 11

driver loses control of vehicle and was unaware of his condition and thus not liable.

Question 12

Muir v Glasgow Corporation

Answer 12

standard of care varies with the risk involved, probability of injury and potential harm

Question 13

test for the standard of care?

Answer 13

objective -

that of the ordinary reasonable person in the circumstances of the defender

likelihood of the act occurring

foreseeability of the damage

Question 14

where will the highest standard of care apply?

Answer 14

where there is a high probability of mass damage

Question 15

what must the pursuer do to demonstrate the defender was negligent?

Answer 15

pursuer needs to say what the standard of care was - where the defender was negligent and what precautions should have been taken

Question 16

Gillon v Chief Constable of Strathclyde Police (1997) SLT 1218

Answer 16

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

Question 17

Samuel v Andrews [2010] EWHC 110 QB

Answer 17

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.

Question 18

Harris v Perry [2008] EWCA Civ 907

Answer 18

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.

Question 19

Anderson v Imrie 2018 CSIH 18

Answer 19

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.

Question 20

Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333

Answer 20

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

Question 21

Brisco v SofS for Scotland 1997 SC 14

Answer 21

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.

Question 22

Latimer v AEC Ltd [1953] AC 643

Answer 22

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.

Question 23

Collins v First Quench Retailing Ltd 2003 SLT 220

Answer 23

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.

Question 24

Brown v Rolls Royce 1960 SC (HL) 22

Answer 24

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.

Question 25

What will known vulnerability of the pursuer do?

Answer 25

May raise the standard of care owed to them

Question 26

Paris v Stepney BC [1951] AC 367

Answer 26

Higher standard of care.

One eyed fitter not given eye protection. Was normal not to give eye protection however as the consequences of injury were much bigger than they would be on a general fitter - a higher standard of care is owed.

Question 27

St George v Home Office [2008] EWCA Civ 1068

Answer 27

Higher standard of care.

Prisoner prone to having seizures put on top bunk.

Question 28

Nettleship v Weston [1971] 2 QB 691

Answer 28

Learner driver caused accident.

We impose the same standard of care on everyone regardless of experience.

Question 29

What needs to be proved to establish negligence?

Answer 29

factual causation, legal causation and novus actus interveniens

Question 30

what is factual causation?

Answer 30

‘but-for’ your negligence/breach this wouldn’t have happened

Question 31

what is legal causation?

Answer 31

foreseeability, immediate, dominant or effective causation

Question 32

what is novus actus interveniens?

Answer 32

does something break the chain of causation

Question 33

McWilliams v Archibald Arrol & Co (1962) SC (HL) 70

Answer 33

No Factual Causation

Scaffolder wasn’t using safety harness and fell to his death. Breach of duty as employer should supply harness. But-for the employers breach, would there be a different outcome? No as it was found the employer wouldn’t wear the harness if it was supplied.

Question 34

Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428

Answer 34

No Factual Causation

Man goes to A&E with stomach pain and doctor tells him to go back home and come back in the morning. Patient leaves and dies.

Duty is breached however but-for the breach would there be a different outcome? No as it was found he would have died anyway - there would have been nothing the doctor could do.

Question 35

Kay’s Tutor v Aryshire & Arran HB (1987) SC (HL) 145

Answer 35

No Factual Causation

2-year-old boy admitted to hospital and was given penicillin but doctor was negligent and gave 30x the dosage. Hospital cured him and sent him away.

He later suffered bilateral deafness and family argued it was the penicillin that caused it. However penicillin doesn’t cause deafness.

Question 36

McTear v Imperial Tobacco Ltd (2005) 2 SC 1

Answer 36

No Factual Causation

McTear smoked JPS cigarettes and got lung cancer and died.

Held that even if these cigarettes didn’t exist - he would go elsewhere.

Question 37

The Oropesa 1943 1 All ER 211

Answer 37

Novus Actus Interveniens is described.

Question 38

Fraser v Bell (1887) 14 R 811

Answer 38

Break the chain of causation

Man was talking to another man as he was carrying bag of coal. Another man approaches with a dog and the dog attacks coal man who then drops coal on friends foot.

Dog owner is sued but argues that although he is the factual cause - they weren’t not the legal cause as he argued man dropping coal broke the chain.

Was NOT successful as it was a foreseeable circumstance of being attacked by a dog.

Question 39

Sayers v Harlow UDC (1958) 1 WLR 623

Answer 39

Break the chain of causation

Woman locked in toilet cubicle and tries to escape - fell and broke her ankle.

Defender argued that they were factual cause but that the woman broke chain of causation when she tried to escape.

NOT successful as it was reasonably foreseeable that someone would try to escape in that manner.

Question 40

McKew v Holland Hannen & Cubitts 1970 SC (HL) 20

Answer 40

Break the chain of causation

Man injures leg at work - views flat and when he was walking down the stairs there was no hand rail. His legs gave way when he was walking and he decides to jump down.

He argued that the employer was at fault as it was where the injury started.

Held it was unreasonable conduct to jump down the stairs and he broke the chain of causation when he jumped.

Question 41

Simmons v British Steel PLC (2004) SC (HL) 94

Answer 41

Remoteness of Damage

Liability is limited to foreseeable consequences and damages myst be within the scope of the duty

Question 42

Kyle v P&J Stormonth-Darling 1993 SC 57

Answer 42

Loss of a Chance is almost always too remote

Kyles sues solicitors firm when they didn’t apply for an appeal. Negligence as it is an infringement of legal rights. Although there was no guarantee he would win, there is loss of a chance.

Question 43

Gregg v Scott [2005] 2 AC 176

Answer 43

Late diagnosis of condition. Argued his loss of survival diminished and thus experienced loss of a chance.

NOT successful as loss is too remote.