Negligence

Question 1

What is negligence?

Answer 1

Duty of care + breach of duty + that breach caused that damage

Question 2

What is the neighbour principle?

Answer 2

Donoghe v Stevens - you must take reasonable care not to injure you neighbour (anyone you ought to have in mind)

Question 3

What is the three part test to prove duty of care?

Answer 3

Caparo test

Question 4

What is the caparo test

Answer 4

• Injury or damage is resonably foreseeable
• there must be proximity of relationship
• must be fair, just & reasonable to owe a duty

Question 5

How do you prove reasonably foreseeable

Answer 5

Kent v Griffiths

Question 6

How do you prove proximity of relationship?

Answer 6

Bourhill v Young - not proximate

McLoughlin v O’Brian - proximate

Question 7

How do you prove that it is fair, just & reasonable?

Answer 7

Hill - not fair

Osman - fair

Question 8

What’s the required standard of care

Answer 8

Standard is objective - that of the ‘reasonable person’

Question 9

Whose the reasonable person?

Answer 9

The man on the Clapham omnibus - considered to be the ordinary person in the street

Question 10

What’s the standard for professionals

Answer 10

Bolam- professionals are judged by the standard of the profession as a whole

Question 11

What are the questions for deciding whether professionals have breached their duty?

Answer 11

1. Does D’s conduct fall below the standard of the ordinary competent member of the profession
2. Is there a substantial body of opinion within the profession that would support the course of action taken by the D?

Question 12

What level is a learner judged at & case

Answer 12

Nettleship v Weston - learners are judged to the standard of the competent more experienced person

Question 13

What level are children or a young person judged at & case

Answer 13

Mullin v Richard - judged at the standard of the defendants age at the time of the accident

Question 14

What level is vulnerable victims judged at & case

Answer 14

Paris - has the claimant got any special characteristics to be taken into account ??

Question 15

What are the special characteristics [4]

Answer 15

1. Size of risk
2. Cost of precautions
3. Knowledge of danger
4. Public benefit

Question 16

Example of size of risk

Answer 16

Bolton v stone - greater care to be taken of higher chance of injury

Question 17

Example of cost of precautions

Answer 17

Latimer - risk involved is balanced against cost & effort of taking precautions

Question 18

Examples of Knowledge of Danger

Answer 18

1. Roe

2. Haley v LEB - if high risk, standard of care is higher & risk not known can be no breach

Question 19

Examples of public benefit

Answer 19

1. Watt - greater risks in emergency situations

2. Day - duty of care not breached in view of emergency

Question 20

What is the factual causation for that breach caused that damage

Answer 20

Barnett - ‘but for’ test

Question 21

What is the legal causation for that breach caused that damage

Answer 21

Wagon mound - remoteness of damage - injury or/& damage can be claimed if reasonably foreseeable

Question 22

Cases for foreseeability [3]

Answer 22

1. Hughes - consequence is foreseeable even if injury exact cause was not
2. Bradford v Robinson rental - consequence foreseeable even if injury is more severe
3. Doughty v turner asbestos - consequence not known so injury not foreseeable

Question 23

Tort case of the thin skull rule

Answer 23

Smith (eggshell rule) - D is liable for all consequences of negligence

Question 24

Define res ipsa loquitur

Answer 24

‘Thing speaks for itself’ - sometimes in situations it is difficult for c to know exactly what happened E.g. an operation

Question 25

What does C have to prove in order for the of red ipsa to be used [3] & case

Answer 25

1. D was in control of the situation which caused the injury
2. The accident would not have happened unless someone was negligent and
3. There is no other explanation for the injury

If proved burden of proof falls to D who has to prove s/he was not negligent - Scott

Question 26

What are the two defences to negligence

Answer 26

1. Contributory negligence

2. Consent