Negligence

Question 1

Define negligence

Answer 1

The failure to exercise reasonable care, thereby causing injury to others or damage to property

Question 2

Who bears the burden of proof in civil litigation?

Answer 2

Claimant

Question 3

What must a claimant prove to establish negligence?

Answer 3

1. Defendant owed a duty of care to the claimant
2. The defendant breached that duty of care by failing to conform to the required standard of conduct
3. The defendant’s breach of duty caused the harm

Question 4

Which case explains the doctrine of negligence?

Answer 4

Donoghue v Stevenson [1932]

‘Snail in the bottle’ case

Question 5

Briefly explain Donoghue v Stephenson [1932]

Answer 5

Claimant went to cafe with a friend who ordered her a ginger beer float.
Claimant poured half of the bottle over her ice cream, and drank some of the ginger beer.
She then poured the rest of the bottle out and found a decomposed snail.

Claimant became ill = personal injury
(either poisoned, or by the sight of the snail, or both)
-> so she sued the manufacturer.

Held:
Claim failed as defendant said the ‘snail’ was yeast sediment

Question 6

Why was Donoghue v Stephenson so significant?

Answer 6

Prior to 1932, negligence wasn’t a claim as you could only claim harm via a contract

Established the modern law of negligence and established the neighbour test.

Created a new judicial precedent
-> Opened up the floodgates to all manufactures owning a duty of care to all customers

Question 7

In duty of care, what is the neighbour principle?

Define neighbour

Answer 7

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

“persons closely and directly affected by an act”

Question 8

Which test is used to establish duty of care?

Answer 8

3-stage Caparo test

Question 9

What are the 3 stages of the Caparo test?

Answer 9

1. Foreseeability
   = was the damage or injury to the claimant foreseeable?
2. Proximity
   = was the relationship between the claimant and defendant sufficiently proximate?
3. Just and reasonable
   = is it just and reasonable to impose a duty of care?

Question 10

What is the name of the case which established the Caparo 3-stage test?

Briefly describe the test

Answer 10

Caparo Industries Plc v Dickman Ltd [1990]

Claimant is an investment company who purchased shares in Fidelity Plc, after relying on the accounts submitted to Companies House by the defendant which stated Fidelity had made £1.3M profit.

However, Fidelity had made a loss of >£400,000 and were insolvent within months.

C brought action against D, claiming they were negligent in certifying the accounts.

Held:
No duty of care owed.
Not sufficient proximity between C and D.
D did not know C existed or how the accounts were being used by C.

Question 11

What would have happened if the neighbour principle had been applied to Caparo Industries Plc v Dickman Ltd [1990]?

Why is this?

Answer 11

Likely the courts would have found D did owe a duty of care to C.

Anything you do (e.g. accounts), that you don’t do well and could reasonably cause harm (e.g. economic loss) is caught by the neighbour principle

Question 12

Why did the House of Lords not apply the neighbour principle to Caparo Industries Plc v Dickman Ltd [1990]?

Answer 12

The neighbour principle would open up the floodgates if all accounts of all companies owe a duty of care to all potential investors on the stock market.

Question 13

Which 2 parts of the Caparo test are essentially the neighbour principle?

Answer 13

1. Foreseeability of harm

2. Proximity

Question 14

Which case law example demonstrates foreseeability of harm?

Briefly describe the case

Answer 14

Home Office v Dorset Yacht Co. [1970]

Young offenders doing supervised work on an island.
One night the officers retired for the evening, leaving the boys unsupervised.
7 of them stole a claimant’s yacht and damaged it.

Dorset Yacht Company sued the Home Office for damages as they were in control of the boys, as the officers were negligent in doing so.

Held:
Home Office owed duty of care to Dorset Yacht Co as they were in a position of control over the party who caused the damage, and it was foreseeable that harm would result from their inaction

Question 15

Which case law example demonstrates proximity?

Briefly describe the case

Answer 15

Bourhill v Young [1943]
‘Pregnant fishwife case’

Claimant was a pregnant woman who was getting off a tram when she saw the defendant riding a motorcycle passed at excessive speed.

C heard (but didn't see) the motorcycle crash 50 feet away and the defendant was killed. 
C later walked passed the incident, and saw lots of blood on the road. 

C went into shock and her baby was still born, so she brought a negligence claim against D’s estate.

Held:
No duty of care was owed.
-> not sufficient proximity between C and D when incident occurred.

Question 16

What is used when establishing if it’s just and reasonable to establish a duty of care?

Answer 16

Floodgates argument

Would imposing a duty of care prevent the defendant from doing his job properly?

Public policy considerations
-> would new judicial precedent be beneficial for society?

Question 17

Which cases are used to demonstrate whether it’s just and reasonable to establish a duty of care?

Answer 17

Hill v Chief Constable of West Yorkshire [1989]

Leach v Chief Constable of Gloucestershire Constabulary [1999]

Question 18

Briefly describe Hill V Chief Constable of West Yorkshire [1989]

Answer 18

Claimant’s daughter was final victim of Peter Sutcliffe (the Yorkshire Ripper), who had murdered 13 in 5 years.

C made a claim against D for the police’s negligence in detecting and detaining of Sutcliffe, so they failed in protecting her daughter’s murder.

Held:
No duty of care owed.

If the police were liable to C, then they would be liable to anybody who’s a victim of crime from anybody they have intelligence on.
-> all public funding would be spent on police paying legal fees to defend these claims
= not in public interest

Question 19

Briefly describe Leach v Chief Constable of Gloucestershire Constabulary [1999]

Answer 19

C voluntarily acted as ‘appropriate adult’ during police questioning of a murderer.

C suffered PTSD due to her involvement in the case and sought damages from D for her psychiatric damage.

Held:
Duty of care was owed.
Proximity was established as D put C in the stressful situation.
Just and reasonable was established to ensure the public continued to volunteer and were looked after.

Question 20

What are the 3 ways a duty of care can be established?

Answer 20

1. Statutory duty of care
   - Health and Safety at Work Act 1974
   - Occupiers Liability Act 1954
2. Common Law duty of care
   - e.g. Nettleship v Weston [1971]
3. Caparo 3-stage test
   - e.g. Caparo Industries Plc v Dickman Ltd [1990]

Question 21

What must you do to fulfil your duty of care?

Answer 21

Act as a reasonable person would

Question 22

What test do the courts use to establish whether a duty of care has been breached?

What standard does this test use?

Answer 22

Reasonable person test
= the minimum standard the law expects all people to be measured against

An objective standard
= if the reasonable person would not foresee damage as a consequence of an action, then the defendant will not be negligent in failing to take precautions

Question 23

Which case law example demonstrates the reasonable person test?

Briefly explain the case

Answer 23

Bogle v McDonalds [2002]

Claimants are children who suffered personal injuries by hot drinks spilled at defendants restaurants.
C said D was negligent in dispensing and serving hot drinks, the cups/lids were inappropriate and they had a duty to warn customers of risks.

C also said the hot drinks were defective under Consumer Protection Act 1987
- not the level of safety as ‘persons were generally entitled to expect’

Held:
D not liable in negligence or under CPA 1987.

A duty of care did not extend to warning about obvious risks.

Question 24

Which case law example demonstrates an objective standard?

Briefly explain the case

Answer 24

Walker v Northumberland County Council [1995]

Claimant was a social worker employed by the defendant.
C had a heavy, emotional caseload and suffered a mental breakdown.
He later returned to work and requested support but D didn’t offer any.
C suffered another breakdown.
C was dismissed for ill health, so sued D for breaching duty of care.

Held:
The 1st breakdown was not reasonably foreseeable, however the 2nd breakdown was foreseeable if C wasn’t offered support.

D in breach of duty of care by failing to take reasonable steps to avoid his illness.

Question 25

What are the 5 factors to be wighted in establishing breach?

Answer 25

1. Magnitude of harm and practicality of precautions
2. Special characteristics of the claimant and defendant
3. Inexperience
4. The social utility of the defendant’s actions
5. Common practice

Question 26

What are the 5 factors to be weighted in determining if a defendant’s actions meet those expected of a reasonable man (i.e. establishing breach)?

Answer 26

1. Magnitude of harm and practicality of precautions
2. Special characteristics of the claimant and defendant
3. Inexperience
4. The social utility of the defendant’s actions
5. Common practice

Question 27

What is the case law example for:

1. Magnitude of harm and practicality of precautions?
2. Special characteristics of the claimant and defendant?
3. Inexperience?
4. The social utility of the defendant’s actions?
5. Common practice?

Answer 27

1. a) Bolton v Stone [1951]
   b) Adams v Bullock (1919)
2. a) Paris v Stepney Borough Council [1951]
   b) Mullins v Richards [1999]
3. Nettleship v Weston [1971]
4. Watt v Hertfordshire County Council [1954]
5. a) Herald of Free Enterprise
   b) Wilson v Governors of the Sacred Heart Primary School, Carlton (1997)

Question 28

What is meant by ‘magnitude of harm and practicality of precautions’?

Answer 28

The higher the risk of harm, the more precautions that need to be put in place.

Question 29

Briefly describe Bolton v Stone [1951]

Answer 29

C injured in her garden by a ball from cricket pitch.

Cricket pitch was surround by fence and balls rarely went into people’s gardens.

C sued for negligence.

Held:
No breach of duty of care.

Likelihood of harm was low and erecting a higher fence was impractical.
Club provided socially-useful service to community.
So they behaved as a reasonable cricket club would have.

Question 30

Briefly describe Adams v Bullock (1919)

Answer 30

Trolley company ran trams under electrical wires through a city.
Wires could not be reached from the ground.

C was a 12 yr old boy who found an 8ft wire and touched the tram wire with it, while holding on.
He was injured and sued.

Held:
No breach of duty of care.

There was no practical alternative for this type of transport and the company had acted reasonably.

Question 31

Briefly describe Paris v Stepney Borough Council [1951]

Answer 31

C had 1 eye and while working in a garage, metal went in his good eye rendering him completely blind.

D (employer) did not provide safety goggles to any employees, so they said there was no breach of duty of care.

Held:
Breach of duty of care.

The duty owed was to this particular employee (with all his known characteristics), not a hypothetical ‘reasonable’ employee.

C only had 1 eye, so there was the magnitude of harm was more significant, therefore a reasonable man would take greater steps than usual to protect him

Question 32

Briefly describe Mullins v Richards [1999]

Answer 32

Two 15 yr old girls play-fought with rulers and a piece of the ruler splinted and entered C’s eye, blinding her.

C sued D for negligence.

Held:
No breach of duty of care.

D was a child and so she could only be held to the standard of a reasonable child of the same age, not of an adult.

So a reasonable 15 yr old would not have foreseen any injury arising from the game and so wouldn’t have taken any additional steps to safeguard C from harm.

Question 33

Give a v v brief overview of Nettleship v Weston [1971]

Answer 33

D = learner driver
C = neighbour who agreed to take D on a drive

D crashed the car into a lamp post.

D fractured knee.

Held:
Learner driver expected to meet the same standard as a reasonable qualified, competent driver.

Question 34

Briefly describe Watt v Hertfordshire County Council [1954]

Answer 34

C worked in fire department and was called to rescue a woman trapped under a lorry.
This required a heavy piece of equipment.

Usual vehicle for transporting the equipment was unavailable so C was told to place it unsecured on a truck and hold on.

C was injured when the truck braked and the equipment fell over.

C sued D for negligence.

Held:
No breach of duty of care.

Emergency situation, + the high degree of social utilising in saving the woman + the low risk of injury
= D not expected to take precautions against harming C

Question 35

Briefly describe the case Herald of Free Enterprise

Answer 35

Herald of Free Enterprise capsized mins after leaving Belgium and killed 193 people.

They left the port with the bow doors open.

Held:
Negligence - failing to check doors were closed
Officers were under pressure to leave immediately after loading and they said it was common practice in the industry

Question 36

Briefly describe Wilson v Governors of the Sacred Heart Primary School, Carlton (1997)

Answer 36

Boy injured by classmates when they left school one afternoon.
Parents sued the school saying a reasonable school would have supervised children at 3pm.

Held:
School acted reasonably.
It was not common to provide supervision at the end of the school day.

Question 37

What are the required standards of care for a professional person?

Answer 37

They must show the degree of competence usually expected of an ordinary professional skilled in that profession

Question 38

Which case example can be used for the duty of care expected of a professional person?

Briefly describe the case

Answer 38

Bolam v Friern Barnet Hospital Management Committee [1957]

D employed a doctor to give the mentally-ill C electro-convulsive therapy.
But the doctor did not give muscle-relaxant drugs or restrain C.
C suffered injured during the procedure.
C sued D, claiming the doctor was negligent.

Held:
Doctor had not breached his duty of care, as he acted in accordance with practices accepted by other medical professionals.
So D was not liable.

Question 39

What is the test for determining the standard of care owed by professionals?

Explain the test

Answer 39

Bolam test

An action cannot be a breach of duty if it conforms with a reasonable body of professional opinion

If this is established, it doesn’t matter if there are others with expertise who disagree.

Question 40

What is the proviso in medical negligence?

Answer 40

Where conflicting medical opinion exists, the practice adopted must be based on logical and defensible grounds

Question 41

Briefly describe Bolitho v City and Hackney Health Authority [1998]

Answer 41

Child brought into hospital with breathing difficulties.

Doctor never examined the boy due to a low battery on her pager, so he was never intubated

The boy died.

Mother sued for negligence, saying the boy should have been seen and intubated.

Doctor said even if she did see the boy, she wouldn’t have intubated. Expert witnesses agreed.

Held:
No breach of duty of care.
Used the Bolam test - refusing to intubate

Question 42

What is the purpose of expert witnesses?

Answer 42

Judges are not experts in all industries so expert witnesses help them decide if a professional has met the required standards or not.

Question 43

What are the 2 factors used to determine whether the defendant’s breach caused the claimant’s loss?

Answer 43

1. Factual causation - the ‘but for’ test

2. Legal causation - the remoteness of damage

Question 44

What is the ‘but for’ test?

Answer 44

Would the claimant have incurred the damage ‘but for’ the defendant’s negligence?

i.e. would the result have occurred but for the act/omission of the defendant?
If yes = defendant not liable

Question 45

Which case demonstrates the use of the ‘but for’ test?

Briefly describe the case

Answer 45

Barnett v Chelsea & Kensington Hospital Management Committee [1969]

C went to hospital with stomach pains and vomiting.
He unknowingly had arsenic poisoning.

The doctor sent him home.

C died 5 hours later.

Held:
Doctor not liable as the their failure to examine the patient did not cause his death.

There was no cure for arsenic poisoning at the time, so C still would have died.

Question 46

What is ‘remoteness of damage’?

Answer 46

Damage which is not reasonably foreseeable is too remote from the breach
-> therefore not recoverable

Question 47

Which case demonstrates legal causation and the remoteness of damage?

Briefly describe the case

Answer 47

Overseas Tankship Ltd. v Morts Dock & Engineering Co. (The Wagon Mound (No.1)) [1961]

Crew members working on C forgot to turn off furnace tap, causing an oil leak in Sydney Harbour.

D owned the wharf and used it to repair ships.

Leaking oil drifted to where D were welding.

Spark from welding set alight some debris on the water, and ignited the oil.
Caused a substantial fire and significant damage to the wharf.

Held:
C were not liable to pay compensation for damage to the wharf.
The damage caused to the wharf and the oil being set alight could not be foreseen by a reasonable person.

Question 48

Due to civil liability, what happens once it has been established that the damage was reasonably foreseeable?

Answer 48

The defendant will be liable for ALL the damage of that type

-> no matter what the extent is

Question 49

Give 2 case examples which show that the defendant must pay ALL the damage

Answer 49

Smith v Leech Brain & Co [1962]

Vacwell Engineering Co. v BEDH Chemicals Ltd [1971]

Question 50

Briefly explain Smith v Leech Brain & Co. [1962]

Answer 50

C employed as a galvaniser of steel by D.

When working, some molten metal burnt his lip.

He developed cancer and died 3 years later.
(He unknowingly had a pre-cancerous condition before the burn.)

Widow sued under Fatal Accidents Act.

Held:
D were negligent and liable for damages.

C burnt their lip as a result of D’s negligence in the workplace.
Employers are liable for all consequences of their negligence, so they’re liable for death.

C’s predisposition to cancer did not matter, nor did the results of the injury. Liability depended on whether D could reasonably force the injury.

Question 51

Briefly describe Vacwell Engineering Co v BDH Chemicals Ltd [1971]

Answer 51

D supplied C with chemicals with a label saying ‘harmful vapour’ on.

The labels were washed off by scientists. A container smashed, the chemical came into contract with water and caused a violent explosion.

This killed 1 person and blew the roof off the lab.

Held:
D was negligent and breached their duty of care.
They did not give sufficient warnings about the chemicals.

Question 52

What does Vacwell Engineering Co v BDH Chemicals Ltd [1971] show about the foreseeability of damage?

Answer 52

Doesn’t matter that the damage was more extensive than could be foreseen,
-> only the kind of damage has to be foreseeable

Question 53

What is the ‘egg-shell skull’ rule?

Answer 53

The defendant must take his victim as he finds him

Question 54

Which case explains the egg-shell skull rule?

Briefly explain the case

Answer 54

Page v Smith [1995]

C suffered from ME and was in recovery when he was in a car crash due to D’s negligence.

C was not physically injured but it triggered his ME
-> ME became chronic so he couldn’t return to work.

Held:
D was liable.

Provided some kind of personal injury was foreseeable it didn’t matter whether the injury was physical or psychiatric.

The fact that an ordinary person wouldn’t have suffered the same injury incurred by C was irrelevant
-> the defendant must take his victim as he finds him

Question 55

Define Res Ipsa Loquitur

What does this mean?

Answer 55

“the thing speaks for itself”

In rare cases, the C doesn’t have to prove the D caused the harm

Question 56

Give a case law example of Res Ipsa Loquitur

Briefly explain the case

Answer 56

Mahon v Osborne [1939]

C died shortly after operation

Post-mortem examination found a swab in his body, which caused infection

Held:
Negligence was established