Negligence Flashcards
What is negligence?
Duty of care + breach of duty + that breach caused that damage
What is the neighbour principle?
Donoghe v Stevens - you must take reasonable care not to injure you neighbour (anyone you ought to have in mind)
What is the three part test to prove duty of care?
Caparo test
What is the caparo test
- Injury or damage is resonably foreseeable
- there must be proximity of relationship
- must be fair, just & reasonable to owe a duty
How do you prove reasonably foreseeable
Kent v Griffiths
How do you prove proximity of relationship?
Bourhill v Young - not proximate
McLoughlin v O’Brian - proximate
How do you prove that it is fair, just & reasonable?
Hill - not fair
Osman - fair
What’s the required standard of care
Standard is objective - that of the ‘reasonable person’
Whose the reasonable person?
The man on the Clapham omnibus - considered to be the ordinary person in the street
What’s the standard for professionals
Bolam- professionals are judged by the standard of the profession as a whole
What are the questions for deciding whether professionals have breached their duty?
- Does D’s conduct fall below the standard of the ordinary competent member of the profession
- Is there a substantial body of opinion within the profession that would support the course of action taken by the D?
What level is a learner judged at & case
Nettleship v Weston - learners are judged to the standard of the competent more experienced person
What level are children or a young person judged at & case
Mullin v Richard - judged at the standard of the defendants age at the time of the accident
What level is vulnerable victims judged at & case
Paris - has the claimant got any special characteristics to be taken into account ??
What are the special characteristics [4]
- Size of risk
- Cost of precautions
- Knowledge of danger
- Public benefit
Example of size of risk
Bolton v stone - greater care to be taken of higher chance of injury
Example of cost of precautions
Latimer - risk involved is balanced against cost & effort of taking precautions
Examples of Knowledge of Danger
- Roe
2. Haley v LEB - if high risk, standard of care is higher & risk not known can be no breach
Examples of public benefit
- Watt - greater risks in emergency situations
2. Day - duty of care not breached in view of emergency
What is the factual causation for that breach caused that damage
Barnett - ‘but for’ test
What is the legal causation for that breach caused that damage
Wagon mound - remoteness of damage - injury or/& damage can be claimed if reasonably foreseeable
Cases for foreseeability [3]
- Hughes - consequence is foreseeable even if injury exact cause was not
- Bradford v Robinson rental - consequence foreseeable even if injury is more severe
- Doughty v turner asbestos - consequence not known so injury not foreseeable
Tort case of the thin skull rule
Smith (eggshell rule) - D is liable for all consequences of negligence
Define res ipsa loquitur
‘Thing speaks for itself’ - sometimes in situations it is difficult for c to know exactly what happened E.g. an operation
What does C have to prove in order for the of red ipsa to be used [3] & case
- D was in control of the situation which caused the injury
- The accident would not have happened unless someone was negligent and
- 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
What are the two defences to negligence
- Contributory negligence
2. Consent
