Negligence

Question 1

What is the introduction to negligence?

Answer 1

Baron Alderson describe negligence, as failing to do something which the reasonable person would do, or doing something with a reasonable person would not do (Blyth v Birmingham Waterworks Co)

Negligence can either come from an act, or an omission and applies to damage to people or property.

The claimant must prove the defendant was negligent.
This Must be shown on the balance of probabilities.

If the defendant cannot prove the D was at fault of the damage or harm then they will be left without a claim

Question 2

What are the tests for negligence claim?

Answer 2

The defendant owes the claimant a duty of care

The defendant has breached this duty

This breach has caused reasonable for seeable injury or damage to the claimant

Question 3

Duty of care

Question 4

Which case created the neighbour principal, and what is the definition?

Answer 4

Donoghue V Stevenson created the neighbour principal And is when individuals have a duty of care to anyone who they ought to have thought could be affected by the act of omission.

Question 5

What was held in the case of Robinson V chief constable of West Yorkshire police 2018?

Answer 5

The appeal was allowed. The Supreme Court stated that a duty of care existed, and that police do owe a duty to the general public.

This case stated that the caparo test does not haveto be applied in every case Instead the court should look at existing Precedent and identify duties through analogy.

Question 6

List the establish duties.

Answer 6

Duty established Through precedent

Contractual duty

Duty under relationships

Duty under public office

Creation of danger

Duty which has been voluntarily accepted

Statutory duty

Question 7

What is the Caparo test?

Answer 7

The Caparo test must only be used in novel situations.

In Caparo V Dickman, a three part test was established:

1- Is the damage or harm reasonably foreseeable?
Kent v Griffiths held: It was ‘reasonably foreseeable’ that the claimant would suffer further illness if an ambulance did not arrive promptly.

2- Is that a close and proximately relationship?
Bourhill v Young held No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between the claimant and defendant when the incident occurred.

3- Is it fair just and reasonable to impose a duty?
Hill V CCWY held The appeal was dismissed The police can be liable in tort if they have Injured a person as a direct result of the act or omission however, they do not owe a general duty of care To apprehend an unknown criminal.

Question 8

Breach of duty

Question 9

What is a breach of duty and it’s test?

Answer 9

Once a duty of care has been establishes up to the claimant to prove that the duty has been broken by the defendant.

This is an objective test as it’s judge to the standard of a reasonable person performing the same task (Vaughan V Menlove)

3 other test a person is judged to.

Question 10

What is the definition of professional standards and its case?

Answer 10

Professionals are judged by the standard of the ‘profession as a whole’ This is seen in the case of Bollam V Friedan Barnet HMC

For professionals, the courts will see a breach of duty if the two points below are applicable

1. If the defendants conduct has fallen below the standard of the ordinary competent member of that profession
2. And if there is a substantial body of opinion, within that profession, that would not support the course of action taken by the defendant.

Question 11

What case is altered the relation to doctors and inform consent when it comes to breached duty of care?

Answer 11

Montgomery v Lancashire health board, 2015 held - The Supreme Court departed from the precedent in Bollam the doctors are under a duty of care to disclose anything serious during childbirth which could affect the mother or the child. Doctors must insure that patients are aware of all material list and as an adult if you accept the risk affecting your own life, you must live with the consequences.

Question 12

What is the definition of learners and its case under breached duty of care?

Answer 12

Learners are judged the standard of a competent and more experienced person.

In the case of Nettleship V Weston It was held that a learner driver is expected to meet the same standard as a reasonable qualified, competent driver.

Question 13

What is the definition of children and its case under breached duty of care?

Answer 13

Children are judged the standard of the Reasonable person of the defendants age at the time of the incident as established in Mullin V Richards.

In Orchard V Lee It was held that the judge found it to be mere horseplay. A breach of duty would only be established. If the 13-year-old boy was running about and playing in a way which was to a significant degree outside the norm of other 13-year-olds.

Question 14

Risk factors

Answer 14

Exam tips for an essay on the whole of negligence discuss 2 Risk factors, however For a problem, question only apply the relevant ones

Question 15

List the risk factors

Answer 15

Does the claimant have any special characteristics?

What is the size of the risk?

Have all appropriate precautions been taken?

Where are the risks known at the time?

Is there a benefit of taking the risk?

Question 16

What is the case but does the claimant have any special characteristics?

Answer 16

Paris V Stepney Borough Council
Held There was a breach of duty, the duty is owed to the particular claimant not to a class of person of reasonable workers

Question 17

What is the case for the size of the risk?

Answer 17

If there is a small risk, the defendant will not be expected to take as great as precaution as seen in Bolton V Stone It was held that there was no breach as the risk of harm was low, and the defendant had taken all precautions e.g. a higher fence

However, if there is high risk higher duty of care is required as seen in Haley V London Electricity board Where it was held that the defendant breached his doc and therefore a greater precaution should have been taking e.g. They should have a fenced of the trench, not covered it with tools.

Question 18

What is the case I have all appropriate precautions been taken?

Answer 18

The courts will consider the risk involved in whether the defendant had taken adequate precautions to eliminate the risk

Latimer V AEC ltd held no breach of duty. There was no duty to close the factory. The defendant only had to take reasonable precautions to minimise the risk which they have done.

Question 19

What is the case for were the risks known at the time?

Answer 19

If the risk of harm is it known, there is no breach

Roe V Minister of health held. There was no breach of duty, and the risk was not foreseeable as it was an unknown risk at the time.

Question 20

What is the definition + case for is there a benefit to taking the risk?

Answer 20

In an emergency greater risk can be taken and a lower standard of care is acceptable. However, it will still be considered whether the duty of care is fair just and reasonable.

The courts accept that the defendant may have at the differently in hindsight, but because they had to act quickly, they may not have considered all the circumstances

In Watt V Hertfordshire county council it was held that there was no breach of duty as the defendants conduct was in order to save a life, so outweigh the need to take precautions.

Question 21

Causation

Answer 21

Both CIF+CIL must be established

Question 22

Causation in fact definition and case?

Answer 22

Factual causation is but for the defendant act or omission the harm would not have arisen.

Barnett V Chelsea and Kensington HMC it was held The hospital was not liable as but for the doctors examination. Mr Barnett would have died Anyway the doctor didn’t cause his death.

Question 23

Causation in law Definition and case?

Answer 23

Damage must not be too remote from the negligence of the defendant. The injury or damage must be reasonably foreseeable. This is the test for remoteness as established in (The wagon mound No1)
The defendant will be liable if the type of injury was reasonably foreseeable, even if the precise way the injury occurred was not

Bradford V Robinson rentals held Although the injury was unusual in cold weather, this was reasonably foreseeable and not too remote. The employers were liable.

Doughty V Turner Asbestos held The damage was too remote. It was not foreseeable that an explosion would occur.

Question 24

What is the definition of NAI?

Answer 24

An intervening act that can break the chain of causation. The principle to be applied is whether the injury or damage was that for seeable consequences of the original act.

Question 25

Act of claimants case

Answer 25

McKew V Hollands held The claimant’s action amounted to a novus actus interveniens because his action in attempting to climb the steps unaided knowing that his leg might give way was unreasonable. The defendant was therefore not liable for the injuries resulting from the incident on the stairs.

Question 26

Act of third-party case

Answer 26

Knightly v Jhons held The senior officer’s instructions and failure to close the entrance to the tunnel were negligent and broke the chain of causation. The claimant’s decision in going through the tunnel was not negligent. Thus the claimant was entitled to full damages from the senior officer and Mr John was not liable.

Question 27

Act of nature case

Answer 27

Carslogie Steamship Co V Royal Norwegian Gov held The chain of causation had been broken by the natural event of the storms at sea, which would relieve the defendant from their responsibility for economic loss. Thus, the storm was a novus actus interveniens and the defendants cannot be held liable for further loss that was sustained as a result of a natural event. He was only liable and responsible for the loss of profit resulting from the collision, not for further damage sustained by the natural events at sea.

Question 28

What is eggshell conditions and its case?

Answer 28

The defendant must take the claimant as he finds them. If the claimant has a pre-existing condition and the defendant will be liable for all subsequent consequences.

Smith V Leech Brain and Co held The court decided that a burn was reasonably foreseeable and because the man had an eggshell condition, the defendant was liable for his death.

Question 29

Defences

Question 30

What type of defence is contributory negligence?

Answer 30

It is a partial defence, and it will result in a reduction of damages awarded to the claimant

The lava farm at 1945 states that any damages awarded to the claimant may be reduced accordingly, to the extent, the claimant contributed to their harm.

The defendant is commonly used in Queens injury or damage suffered in road traffic accidents such as motorcyclist Failing to wear a helmet, O’Connell V Jackson His damages were reduced by 15% by not wearing a helmet

When a driver or passenger, it’s not right, the seatbelt it’s possible for there to be 100% reduction in damages as in Jayes V IMI kynoch ltd 1985

In Sayers V Harlow Urban District Council It was held that the council was liable, for its negligent maintenance but her damages were reduced by 25% because of the way She tried to escape

Question 31

What type of defence is consent (Volenti non fit injuria)?

Answer 31

It is, therefore the fence and the claimant will not receive any damages

In order to use the defence of defendant, must show:

The claimant had full knowledge of the precise risk involved

The claimant exercised free choice

The claimant voluntarily accepted the risk

Section 149 road traffic act 1998 states the defence cannot be used for Road traffic accidents. The defence will not be applied just because the claimant knows the existence of risk they must fully understand the nature of the actual risk.

The defence will not succeed where the claimant has no choice, but to accept the risk. The claimant must voluntarily undertake the risk of harm.

Where a person has a duty to act and then is injured because of defendants negligence volenti will not be available as a defence. The duty means that a claimant had no choice, but to act this usually applies to employees. Eg A rescuer is not recorded as freely and voluntarily accepting the risk Ogwo V Taylor held Duty of care was ultra professional fireman. There was no requirement that the risk, the exceptional, the defence of Volenti had no application.

Question 32

Remedies

Answer 32

If the claimant successfully proves that negligence claim, he will be entitled to a remedy. This is usually damages.

Question 33

What are Non-pecuniary losses?

Answer 33

These are general and Happen pre-trial

Non quantifiable eg mental distress pain suffering loss of amenities.

Question 34

What are pecuniary losses?

Answer 34

These are special and post trial in the form of a lump sum or a structured settlement.

These are quantifiable example, wages, hiring a car

Question 35

What is the definition of payment and mitigate losses?

Answer 35

The claimant was received compensation from the responsible party for the injuries and losses that they have sustained as a result of the harm or injury.

Is the principle of a party who has suffered a loss has to take reasonable action to minimise the amount of loss suffered.