Negligence Flashcards
What does Negligence cover?
Personal injury or damage to property
What is negligence
An act or failure to act which causes injury or damage to another person or their property
What case is negligence defined in
Blyth v Birmingham waterworks co. (1856) - ‘failing to do something which the reasonable person would do or doing something which the reasonable person would not do’
How to get negligence
Negligence is fault based - so the claimant must provide evidence that the blame is on part of the defendant. He must prove that the defendant owed him a duty of care, that he breached that duty and that break caused reasonably foreseeable injury or damage. The judge must decide the level of fault based on the balance of probabilities
If the evidence provided by the claimant is not sufficient, he may be left without compensation
Duty of care
I’m order to start a tort, a legal relationship must be established where a duty of care exists on the part of the defendant
Donoughue v Stevenson (1932)
Established the ‘neighbour principle’ that the person is owed a duty of care by the defendant. In this case, it was manufacturer
What’s the caparo test
Strictly used until 2018 and only used now in novel cases.
It’s a 3 part test which replaced the neighbour principle:
1. Was the damage or harm reasonably foreseeable ?
2. Is there a sufficiently proximate relationship between the claimant and defendant?
3. Is it fair, just and reasonable to impose duty?
Case - caparo v dickman 1990
The Law since 2018 - Robinson v chief constable of west Yorkshire 2018
This case established that the caparo test only need applying in new and novel cases and that the courts should generally establish a duty by looking at existing duty situations and ones with clear analogy.
Case - 76yr old woman was knocked to the ground by the police.
What’s the law on duty of care?
Legal principle, the caparo test does not have to be strictly applied in every case, instead the courts should look to existing statutes and precedents and identify duties through analogy.
When is the caparo test used?
If your unsure if the person owes a duty of care or not
Now look at each case on its own account
Fair, just and reasonable to impose duty
In the final part of this test, the courts need to decide when it is reasonable to assume a duty of care
Case - hill v chief Constable of West Yorkshire- court ruled that it was unfair to assume that the police had a specific duty of care to members of the public.
Breach of duty
The objective standard of care and the reasonable person:
The claimant must prove firstly that a duty of care is owed and secondly that it has been breached. The standard set is that the defendant who is alleged to have breached that duty of care can be regarded as the ‘reasonable person’. In other words there were no special circumstances that prevented him from doing the task completely.
Other breaches of duty
Learner drivers and claims: a learner is judged at the standard of the competent, more experienced driver nettleship v Weston 1971
Children and young people: if the defendant is deemed to meet the standard of a child and not that of a reason adult, then they are not in breach of a duty of care mullin v richards 1998
Risk factors
Has the claimant any special characteristics which should be taken into account? Paris v Stepney Borough council (1951)
What’s the difference between damage and damages
Damage is the legal test of a loss to the claimant from a breach of duty
Damages is the compensation paid to the claimant who proves the defendant is negligent
