Negligence Flashcards
How we establish a duty of care in law?
Pre- existing duty or for novel situations - Caparo test (Caparo v Dickman)
Authority for pre existing duties
Robinson
Pre existing duties
Drivers/ other road users (Nettleship v Weston)
Police/ public (Robinson)
Doctor/ patient (Whitehouse v Jordan)
Sportsman/ sportsman (Condon v Basi)
Employer/ employee (Walker v Northumberland CC)
Lawyer/ client (Hall v Simons)
Public body/ public (Clunis v Camden & Islington)
Judiciary/ public (Sirros v Moore)
Fire brigade/ public (Capital Counties v Hampshire CC)
Caparo test
Harm/ injury was reasonably forseeable (Kent v Griffiths)
Proximity between C and D - time, space/ relationship (Bourhill v Young)
Fair, just and reasonable and no public policy reasons not to hold D liable (Mulcahy v MOD)
Test for negligence
Duty, breach and damage
Test for breach of duty
The reasonable man test - ordinary and competent person acted the same as the D did/ did not act (Blythe v Birmingham Waterworks).
Types of ordinary person
Ordinary person (Wells v Cooper)
Reasonable child (Mullins v Richards)
Reasonable professional (Bolam v Frien Hospital)
No allowances made for inexperience (Nettleship v Weston)
Risk factors for breach
Likelihood of harm/ size of risk (Bolton v Stone)
Characteristics of C (Paris v Stepney)
Cost of practical precautions (Latimer v AEC)
Social utility/ benefit (Watts v Herts CC)
Test for damage
Factual and legal causation
Test for factual causation
‘But for’ test: but for D’s breach the C would not have suffered damage.
Case for factual causation
Barnett v Chelsea Hospital
Test for legal causation
Damage must be reasonably forseeable and not too remote.
Case for legal causation
The Wagon Mound No 1
Situations where harm is not reasonably forseeable but D may still be liable
Type of damage caused (Bradford v Robinson Rentals)
Sequence of events (Hughes v Lord Advocate)
Thin skull rule (R v Blaue)
Thin skill rule
The D must take their C as they find them (R v Blaue) and D may be liable for the full extent of C’s damage.
Defences for negligence
Contributory negligence and consent
Which is the partial defence?
Contributory negligence
What does the partial defence do?
Reduce C’s damages
Which is the full/ complete defence?
Consent
What does this full defence do?
Remove D’s liability completely and C is not awarded any damages.
Test for consent
C knows risk and freely consents to that risk (Morris v Murray)
When will consent fail?
When content not freely given (Smith v Baker) and where C felt like they had a moral obligation (Haynes v Harwood)
What Act of parliament do we use for contributory negligence?
The Law Reform (Contributory Neglignce) Act 1945
When does contributory negligence apply?
When C’s own behaviour has fallen the standard expected of the reasonable man and C contributed to their own loss.
C must have either (for contributory negligence)
Contributed to the accident (Brannon v Airtours)
C made their own injuries worse (Froom v Butcher)
Main remedy for negligence
Damages
Types of damages
Special damages
General damages
Special damages
Can be precisely calculated - financial loss/ property loss calculated from the accident up until the trial
General damages
Cannot be precisely calculated
Other types of losses
Pecuniary and non- pecuniary loss
Pecuniary losses
Future loss of earnings and medical expenses
Non- pecuniary losses
Pain and suffering, loss of amenity, bereavement
What is the C under a duty to do to their losses?
Duty to mitigate losses (keep them to a minimum) (Motorways v Alwahbi)
How are the damages paid?
Lump sum or a structured settlement
Act of parliament for damages
The Damages Act 1996
