Negligence Flashcards
What does liable mean?
the judge’s decision that the case against the defendant is proved and the defendant should pay compensation or an injunction.
What is the neighbour principle in negligence?
the prson who is owed a duty of care by the defendant, established in Donoghue v Stevenson (1932)
what are the three parts of the Caparo Test?
- was the damage or harm reasonably foreseeable? (Kent v Griffiths)
- is there a sufficiently proximate relationship between the claimant and defendant? (Bourhill v Young)
- is it fair, just, and reasonable to impose a duty of care? (Hill v Chief Constable of West Yorkshire)
How did Robinson v Chief Constable of West Yorkshire (2018) change when we use the Caparo test?
The Caparo test should only be used in new and novel cases. For other cases, use precedents and existing statutes to identify duties through analogy.
- Public authorities are under a duty not to cause the public harm via their own actions but are not under a duty to prevent harm from third parties (Hill v Chief Constable of West Yorkshire)
How are professionals judged when identifying a breach of duty?
Judged according to the standards of the profession (Bolam 1957)
How are learners judged when identifying a breach of duty?
judged at the standard of the competent, more experienced person (Nettleship v Weston)
How are children and young persons judged when identifying a breach of duty?
judged at the standard of the defendant’s age at the time of the accident (Mullin v Richards)
How is the size of risk as a risk factor considered when identifying a breach of duty?
Greater care to be taken if there is a higher chance of injury (Bolton v Stone)
How is the cost of precautions as a risk factor considered when identifying a breach of duty?
Risk involved is balanced against the cost and effort of taking precautions (Latimer v AEC)
How is the knowledge of danger as a risk factor considered when identifying a breach of duty?
If risk is not known at the time of the accident, there can be no breach (Roe 1954)
If high risk of injury the standard of care is higher (Haley v LEB)
How is public benefit (utility) as a risk factor considered when identifying a breach of duty?
Greater risks can be taken in an emergency (Watt v Hertfordshire)
Duty of care is not breached in view of an emergency (Day v HPS)
How do we establish whether the ‘reasonable person would have acted the same way as D?
matters such as the age of D and whether he is a professional or experienced can be considered
What are the two parts to ‘damage’ in negligence claims?
causation - the idea that the breach of duty has caused the injury or damage
remoteness of damage - decides if the injury or damage was reasonably foreseeable
What is the ‘but for’ test?
if it can be proved that but for D’s action or omission, injury or damage wouldn’t have occurred, then there is no need to find legal
causation (Barnett 1969)
What is novus actus inteveniens?
in the chain of events leading from one accident, you have another which is totally unrelated, then the chain of causation is broken. Liability will still exist for the first though…
cases supporting remoteness of damage
The Wagon Mound case (1961) - the defendant is only liable if the injury or damage was reasonably foreseeable
Hughes (1963), Bradford (1967) - the damage was reasonably foreseeable
What is ‘res ipsa loquitur’ and what are the three things that must be proven in these cases?
“the thing speaks for itself”
In some cases, the claimant may not know exactly what happened (e.g. operation gone wrong), so the claimant needs to prove this:
- The D was in control of the situation that caused injury
- Injury wouldn’t have happened but for D’s negligence
- There is no other explanation for the injury
Scott (1865)
What are the three things needed to prove negligence?
Duty of care, Breach of duty, Damage
What are the two defences for negligence?
contributory negligence and consent
What is contributory negligence?
The defendant accepts liability but suggests that the claimant is also partially to blame. The judge then deducts a percentage of the damages depending on the level of negligence (Sayers 1958)
can also deduct for playing part in an injury (e.g. not wearing a seatbelt or helmet)
(O’Connell v Jackson, Froom v Butcher, Stinton v Stinton)
What must be demonstrated for the full defence of consent (volenti)?
- there was knowledge of the precise risk involved (Stermer v Lawson)
- exercise of free choice by the claimant (Smith v Baker)
- a voluntary acceptance of that risk
Can D claim contributory negligence after the defence of volenti fails?
Yes
