Negligence

Question 1

4 elements needed

Answer 1

1) Duty of care
2) Breach of duty
3) Causation
4) Defences

Question 2

Established duty of care situations

Answer 2

-one road user to another
- driver to passenger
- driver to pedestrian
-cyclist to driver
-cyclist to pedestrian
-doctor to patient
-employer to employee
-manufacturer to consumer
-teacher to pupil

Question 3

Novel duty situations - Caparo test

Answer 3

1) reasonable foresight of harm to the claimant
2) sufficient proximity of relationship between claimant and defendant. Duty of care limited in case of omissions, pure economic loss and pure psychiatric harm
3) that it is fair, just and reasonable to impose a duty (charities will not be fair just and reasonable)

Question 4

Duty of care owed by the police - General rule

Answer 4

They do not owe a duty of care to any individual as their duty is to the public at large

Question 5

Duty of care owed by the police - Exception

Answer 5

Kirkham - police had assumed a responsibility towards the prisoner. Court considered there was a key difference between positive acts (a duty will be imposed) and omissions (not duty imposed) Where an arrest (positive act) is negligently performed the police are liable not only for any injury caused

Question 6

Liability for omissions to act - General rule

Answer 6

You do not owe a duty to the world for your omissions - for doing nothing to prevent harm
There is no duty to rescue someone whose you see in danger. If you do try to rescue such a person you will be liable in negligence only if you positively make the situation worse

Question 7

Liability for omissions to act - Exceptions

Answer 7

Occasions when there is a duty to act positively. There is a duty to act positively in tort if a person has some sort of power or control over the other person or object

Question 8

Breach of duty

Answer 8

The defendant must be at fault by failing to come up to the standard required by law for fulfilling the duty. The issue of breach involves the application of a 2 stage test: The court 1st assesses how the defendant ought in the circumstances to have behaved (what standard of care defendant should have exercised) and whether the defendant’s conduct fell below the required standard

Question 9

Breach of duty - Step 1 Standard of care

Answer 9

What would a reasonable person have foreseen in the particular circumstances? Reasonable man = ‘the man on the street’. Special standards:
- where the defendant holds himself out as possessing a particular skill
- where the defendant is a child
- where the defendant suffers from a disability

Question 10

Breach of duty - step 1 standard of care - the skilled defendant

Answer 10

Be judged according to the degree of skill or competence to be expected from a person who has that special skill. Doctors must meet the standard of their profession. Where professional opinions differ as long as a defendant’s actions are supported by a reasonable body of professional opinion they should not be judged to be negligent

Question 11

Breach of duty - step 1 standard of care - under skilled defendant

Answer 11

Inexperience will not be a relevant consideration in deciding whether a defendant has been negligent. A junior hospital doctor must meet the same standard of a competent doctor

Question 12

Breach of duty - step 1 standard of care - children

Answer 12

A child defendant will be expected to show such care as can reasonably be expected of an ordinary child of the same age. The standard is adjusted only for the child’s age

Question 13

Breach of duty - Step 2 proving breach of duty - key point

Answer 13

The claimant must prove his case ‘on a balance of probabilities’. The claimant must establish that it was more likely than not that the defendant was in breach of the duty of care. Rely on witnesses including expert witnesses

Question 14

Breach of duty - Step 2 proving breach of duty - Res Ipsa Loquitur

Answer 14

Used when there are no relevant witnesses. 3 conditions:
1) Thing causing the damage must be under control of the defendant
2) Accident can’t of happened without negligence
3) Cause of the accident is unknown to the claimant - they have no direct evidence
When it arises it raises a prima facie inference of negligence against the defendant

Question 15

Causation - definition

Answer 15

The breach of duty caused the damage. 3 aspects which need to be satisfied:
1) Causation in fact
2) Intervening acts
3) Remoteness

Question 16

Causation - causation in fact - Basic test

Answer 16

‘But for’ test - ‘but for the defendant’s breach of duty would the harm to the claimant have occurred?’ - If the answer is NO then causation is satisfied. If the answer is yes then causation has failed

Question 17

Causation - causation in fact - modified test

Answer 17

In a multiple cause case the claimant need not show that the defendant’s breach of duty was the only cause of the damage or even the main cause, they simply have to show that it MATERIALLY CONTRIBUTED to the damage.

Question 18

Causation - causation in fact - divisible and indivisible injury

Answer 18

Divisible injury - if the court can apportion damages accordingly then a claimant will need to sue all defendants to recover damages in full.
Indivisible injury - the court cannot divide the injury up then the claimant is entitled to recover damages in full from either defendants .

Question 19

Causation - legal causation

Answer 19

Is it right that the defendant is held liable legally for the harm caused?

Question 20

Breaking the chain of causation - intervening acts

Answer 20

The act must not be reasonably foreseeable and must cause the harm

Question 21

Breaking the chain of causation - intervening acts - actions of the claimant

Answer 21

Where the claimant does something after defendant’s act which causes further harm - must be entirely unreasonable. McKew v Holland - defedant’s negligence weakened claimant’s leg leaving it with a tendancy to give way. When the claimant descended a steep staircase which had no handrail his leg gave way and suffered further injuries - court held man acted unreasonably

Question 22

Remoteness of damage - Basic rule - Wagon Mound test

Answer 22

Test is one of reasonable foreseeability. Is the damage of such a kind that a reasonable person would have foreseen it? Can only recover it Ii a reasonable person would have foreseen it

Question 23

Remoteness of damage - similar in type rule

Answer 23

provided that the type of injury is reasonably foreseeable it is not necessary to foresee the precise way in which the injury is caused

Question 24

Remoteness of damage - egg-shell rule

Answer 24

take your victim as you find them. If the claimant suffers a particular disability or has a particular condition he can recover in full from defendant even-though defendant could not have foreseen full extent of injury or loss

Question 25

Defences to negligence - Voluntary risk of assumption (Volenti)

Answer 25

Operates as a complete defence. Cannot be relied on for any motor vehicle. 2 elements of defence must be established. Claimant had full knowledge of nature and extent of risk and the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence. If the relationship between the parties is such that there is doubt as to whether the claimant can truly decide voluntarily then consent cannot apply Rarely succeeds even in rescuer cases

Question 26

Defences to negligence - Illegality

Answer 26

Complete defence. Must be a very close connection between illegal activity of claimant and injury suffered so that damage arises directly out of the illegal activity

Question 27

Defences to negligence - Contributory negligence

Answer 27

Partial defence. Carelessness on the claimant’s part and that carelessness has contributed to the claimant’s damage. The claimant has failed to take reasonable care for his own safety. Should be measured against that of a reasonable person. 15% reduction on damages.

Question 28

Defences to negligence - Contributory negligence - Seatbelts

Answer 28

A passenger in a car who failed to wear a seatbelt could be found contributorily negligent if this failure contributed to their injuries

Question 29

Defences to negligence - Contributory negligence - Crash helmets

Answer 29

Motor cyclists who suffer head injuries due to failure to wear a crash helmet will have their damages reduced.

Question 30

Defences to negligence - Contributory negligence - Drunken drivers

Answer 30

Passengers who accept lifts from a driver they know to be drunk can expect to have their damages reduced. Applies even if the passengers were too drunk to appreciate the driver’s intoxication but they knew that by going out drinking together they would later be driven home by the driver

Question 31

Defences to negligence - Contributory negligence - Children

Answer 31

No age below a child cannot be contributorily negligent. The test is whether an ordinary child of the claimant’s age would have taken more care for his safety. The child’s damages cannot be reduced on account of the negligence of his parents

Question 32

Defences to negligence - Contributory negligence - Rescuers

Answer 32

Will be judged against the standard of the reasonable rescuer. Only if a rescuer has shown a wholly unreasonable disregard for his or her own safety is there likely to be a finding of contributory negligence