Negligence

Question 1

What are the 6 elements of a tort

Answer 1

loss or damage → duty → breach → causation → remoteness → defences

Question 2

What are the two main cases for establishing the test for DoC?

Answer 2

1. Donoghue v Stevenson[1932]

Facts: The claimant’s friend bought her a ginger beer, which came in an opaque bottle, in a café.
C found a decomposed snail in bottle → made C ill
C unable to sue cafe owner as there was no contract between them (C’s friend bought the beer so contract there)
C sues manufactrurer

Held: HL → manufacturer owed a duty to the ultimate consumer.
previously: manufacturers had only been held liable to consumers in limited situations.

old law, now replaced by:

2. Caparo Industries v Dickman[1990] 2 AC 605 (HL)

Question 3

What is the standard of proof for a tortious claim?

Answer 3

on the balance of probabilities

It is for the claimant to prove on a balance of probabilities duty of care, breach, causation and remoteness.

It is for the defendant to prove any relevant defenses, thus for this element the burden of proof shifts to the defendant

Question 4

What is the neighbour principle? (give the two limbs)

Answer 4

Lord Atkin in Donoghue v Stevenson[1932] AC 562

‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour’

1. Foreseeability

Take reasonable care to avoid acts or omissions which you can reasonably foresee to be likely to injure your neighbour.

2. Proximity

persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Question 5

What is the 3 stage approach to DoC in Caparo Industries v Dickman[1990]

Answer 5

Donoghue increases the reach of the tort of negligence → Caparo limits the expansive approach by setting out a 3-stage test for establishing DoC where there is no precedent. Nonetheless, court suggested that it would be unwise to look for a magic formula for a general test for the existence of a duty of care. Instead, a cautious, incremental approach based on existing authority was recommended.

(a) reasonable foreseeability of harm to the claimant,

(b) proximity or neighbourhood between the claimant and defendant, i.e. Atkin’s “neighbour” test

(c) that it is ‘fair, just and reasonable’ to impose a duty of care in such situation.

main policy considerations: floodgates, insurance, crushing liability, deterrence, maintenance of high standards, defensive practices

Question 6

What is the precedent for DoC for:

patient + doctor - Cassidy v Ministry of Health (1951)

Answer 6

Medical professionals owing a duty of care to their patients once they accept them for treatment.

Question 7

What is the precedent for DoC for:

road user + other road user - Nettleship v Weston (1971) and Fitzgerald v Lane & Patel

Answer 7

Drivers owing a duty of care to other road users (pedestrians, other drivers etc)

Question 8

What is the precedent for DoC for:

emergency services - Capital Countries v Hampshire County Council PLC.

Answer 8

fire brigades do not owe a duty to attend a fire, but if they do attend, they owe a duty not to make the situation worse through a positive act.

Question 9

What is the precedent for DoC for:
Rescuers - Baker v T.E. Hopkins & Sons Ltd (1959)

Answer 9

Rescuers are owed a duty of care if it is reasonably foreseeable that someone would seek to rescue someone in danger.

Question 10

What is the precedent for DoC for:

Police + public - Robinson v Chief Constable of West Yorkshire Police (2018)

Answer 10

The police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carryout out an arrest.

Question 11

What is the general rule for liability for omissions

Answer 11

No duty of care is owed in relation to omissions/failure to act (Smith v Littlewoods Organization ltd, 1987).

Question 12

What are the 5 main categories of exceptions to the general rule on liability for omissions?

Answer 12

1. Statutory duty

→ Occupiers’ Liability Act 1957: DoC on the occupier of premises to ensure their premises are reasonably safe for visitors.

2. Contractual duty

→ Stansbie v Troman (1948).

3. D has sufficient control over C

→Reeves v Commissioner of Police for the Metropolis (1999): DoC on the police to protect the prisoner’s health, including the possibility that they may attempt to take their own life. This is because the police had a high control over the victim, who was in their custody.

4. D assumes responsibility for C

→ Nature of the person
→ employment
→ previous relationship between the parties
→ Barrett v Ministry of Defence (1995): officer who had assumed responsibility for drunk Barret was held to owe him a duty of care.

5. D creates a risk through an omission

→ Goldman v Hargrave (1967): D liable for naturally occurring fire because he knew, or ought to have known of the danger and failed to take reasonable steps to mitigate the danger.

Question 13

What is the precedent for omissions for:

→ Ambulance - Kent v Griffiths & Others[2000]:

Answer 13

• ambulance servicesowe a dutyof care to respond to a 999 call within a reasonable time.
• However, merely answering a 999 call or attending a 999 call-out will not amount to an assumption of responsibility.
• In order to assume responsibility, more is required such as an assurance upon which detrimental reliance has been placed.

Question 14

What is the precedent for omissions for:

→ Fire brigade - Capital and Counties plc v Hampshire County Council[1997].

Answer 14

• fire brigades owenoduty of care to attend a fire
• but if they do attend a fire, they owe a duty not to make the situation worse through a positive act

Question 15

What is the precedent for omissions for:

→ Police: Alexandrou v Oxford[1993]

Answer 15

• no duty to respond to emergency calls
• but: exceptions such as in reeves may apply (police to protect well being of prisoner’s health)

Question 16

What is meant by liability for acts of third parties?

Answer 16

different type of omission → liability for failure to prevent third party from causing harm
Where a third party causes the claimants harm because the defendant failed to do something.

Question 17

What is the general rule for liability of third parties?

Answer 17

no duty to prevent a third party from causing harm to the claimant (Smith v Littlewoods Organisation Ltd[1987] AC 241).

Question 18

What are the 4 main categories of exceptions to the general rule on liability for acts of third parties

Answer 18

1. There is sufficient proximity between the defendant and the claimant. AND/OR
2. There is sufficient proximity between the defendant and third party. AND/OR
3. The defendant created the danger. AND/OR
4. The risk is on the defendant’s premises.  Where the defendant knew / ought to have known they may have a positive duty to eradicate or diminish that danger.

Question 19

What is the two step process to establishing if there has been a breach?

Answer 19

1. Setting the standards of care

-> First the standard of care to be expected of the defendant must be established.
-> This is a question of law (precedent).

2. Determining Breach

-> Once the standard of care has been ascertained, all the facts and circumstances must be examined to see if the defendant has fallen below that standard of care ie breach the duty of care owed.
->This is a question of fact (depending on the relevant facts of the case).

Question 20

What are the 3 standards of care?

Answer 20

1. Reasonable man
2. Lower standard
3. Professional standard

Question 21

Explain the features of the standard of care: “The reasonable man”

Answer 21

What would a reasonably competent person do / not do in a given situation.

This is the common starting point in establishing the standard of care.

The classic description of the standard of care was given in the case Blyth v Birmingham Waterworks (1856).

Question 22

Explain the features of the standard of care: “the lower standard”

Answer 22

In the case of children or persons affected by an illness/disability, the standard of care will be lower.

• Children -> The standard of care will be that of the reasonable child of the defendant’s age. Mullin v Richards [1998].
• Illness of disability -> The standard will only be lower than that of the reasonable man, if the defendant was unaware at the time of the alleged negligence that they were suffering from the relevant illnesses or disability. Mansfield v Weetabix Ltd [1998]

Question 23

Explain the features of the standard of care: “the professional standard”

Answer 23

Where the defendant is carrying out an activity that requires a skill that the ordinary person doesn’t have, the professional standard of care is applied.

a. Medical professions, accountants, lawyers etc…

b. Bolam -> This case established the professional standard of care. The standard of care is the one of the ordinary reasonable man exercising that special skill. A person need not possess the highest expert skill, it’s sufficient for that person to exercise the ordinary skill of an ordinary competent person exercising that particular art.

Question 24

What is meant by the “ACT NOT THE ACTOR PRINCIPLE”

Answer 24

It is the act, not the actor that sets the standard of care.

So if for example someone is a trainee solicitor writing a will for a private client, they’ll be judged by the standard of the reasonable man professing to be a competent qualified solicitor for a private client.

if for example a householder carries out some trivial repair work on her property, including the door handle on her front door, and the handle has not been fixed properly and this harms the householder’s friend, The standard of care expected of the householder would be that of a reasonably competent amateur carpenter.

Nettleship v Weston [1971]  A learner driver was judged by the standard of the ordinarily competent driver. No allowance was made for her lack of experience. The act (driving) set the standard; it was not adjusted to the actor (a learner driver).

Wilsher v Essex AHA [1986]:  A lower standard was not applied to a junior doctor. The standard is tailored to the activity the doctor is undertaking (the act), not to their individual level of experience (the actor). This applies to all professions.

Question 25

What are the main factors relevant to establishing a breach of DoC

Answer 25

Balancing:

1. Likelihood of harm

The more likely someone is to get injured, the more likely it is that there will be a breach. In Bolton v Stone [1951], chances were so slight that there was no breach. A reasonable person does not take precautions against every risk, only those reasonably likely to happen.

2. Magnitude of harm

If any injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury. Paris v Stepney Borough Council [1951], Although the risk of injury was small (but still foreseeable), the consequences of the injury were significant (loss of sight/ Magnitude of harm). They should, therefore, have taken greater care.

Against:

3. Practicality of precautions

How easily the risk could have been avoided and the cost and practicality of these precautions. Latimer v AEC Ltd [1953], the cost and impracticality of these precautions was disproportionate to the small risk of injury to the claimant.

4. Utility of the defendant’s conduct

The greater the value to society of the defendant’s activity the more the court will justify the defendant’s act. If the defendant has taken a risk with the aim of preserving or protecting life, limb or property, then this may be justified. Watt v Hertfordshire County Council [1954], the fireman’s ultimate aim of saving life justified taking the risk of not properly securing the lifting equipment in transit.

Question 26

What is the Bolam test and when is it used?

Answer 26

tests is used by the courts to determine if there’s been a breach in professional negligence.

Two limbs:

1. Standard of care

The standard for a professional is based on what the reasonable professional in that field would have done.

2. Has the professional fallen below that standard of care?

A professional is not liable in negligence is he has acted in accordance with a practice accepted as proper by a responsible body of men skilled in that particular art. A man is not negligent if he’s acting in accordance with such practice, merely because there is a contrary view.

A professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of men skilled in that particular art.

Question 27

What are 2 limits of the Bolam test?

Answer 27

1. The court must be satisfied that the exponents of the body of opinion relied upon can demonstrated that such opinion has a logical basis – Bolitho

A Responsible body of opinion  De Freitas v O’Brien and Connolly [1995] established that such a body does not have to represent the majority of opinion, merely an acceptable one.

2. When it comes to a doctor advising in relation to risks, a doctor is under an obligation to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. (Montgomery)

Question 28

What are the 2 main defences to breach of DoC

Answer 28

1. Usual or common practice

RULE: If a defendant can show they have acted in accordance with a practice usually followed by others in that field, this will be an argument in the defendant’s favour, and the defendant may escape liability.

However, if the common practice is negligent itself, then the defendant will be in breach. Re Herald of Free Enterprise.

It seems likely that the less expertise / specialist knowledge involved in a particular area, the less weight the court will give to ‘common practice’ as a consideration compared to the likelihood of harm, magnitude of harm, practicality of precautions and benefits from the defendant’s conduct.

2. State of the art defense

The courts must assess the defendant’s actions against the knowledge in the profession at the time of the alleged breach. Roe v Minister of Health [1954], The test to be applied in this case was what a responsible body of medical opinion would know at the time of the operation and not at the time of the court hearing (1954).

Question 28

How does The Wagon Mound (No 2)[1967] illustrate the balancing act of establishing whether there has been a breach of DoC?

Answer 28

All relevant factors need to be balanced to determine if there has been a breach. In

The Wagon Mound (No 2)[1967]. In this case, the court noted that it was very improbable that the oil would be ignited in this way (NO likelihood of harm), but the harm resulting if it was ignited could be very large (YES magnitude of harm), and it would have been easy to avoid the spillage (YES practicality of precautions). There was no clear benefit to the defendant’s conduct (to wider society).

HELD: Accordingly, the defendant had fallen below the required standard of care.

Whilst the courts will balance magnitude of harm against practicality of precautions when assessing breach (Wagon Mound (No.2) [1967]), the magnitude of harm must be foreseeable (Paris v Stepney Borough Council [1951]) in order for there to be a breach and it was not here.

Question 29

What are the two key elements for establishing causation?

Answer 29

1) Factual Causation

Establishing the link between the breach and the damage

2) Legal Causation

Considers whether there are any ground upon which the link should be regarded as having been broken. (By what is called a Novus Actus Interveniens, a new intervening act.)

Question 29

What is the starting point for factual causation?

Answer 29

‘but-for’ test

The claimant must prove on a balance of probabilities that but-for the defendant’s breach, they would not have suffered their loss at that time and in that way.

Barnett v Chelsea and Kensington Hospital (1969).

In this case, the hospital breached the duty of care owed to a patient as a doctor failed to carry out a proper examination. However, the evidence showed that he would have died even if the doctor had examined him. Therefore, since the patient would have still died even if he had been examined by the doctor, it was not possible to say that the claimant wouldn’t have suffered his loss (death) but for the defendant’s conduct.

Key -> The ‘but for’ test must be proved on the balance of probabilities, so there must be a more than 50% chance that the defendant’s breach caused the claimant’s loss.

In the case of Wilsher v Essex AHA (1988) the but for test failed because there were 5 equally possible factors, one of which was tortious, which could have caused the claimant’s loss. Therefore, on the but-for-test could not be proven on a balance of probabilities as there was only a 20% chance (rather than at least 50%).

Question 30

How does the But-for-test apply in cases of clinical negligence where the defendant failed to advise on risks?

Answer 30

Chester v Afshar 2004 -> where the breach is a failure to advise on risk, the ‘but for’ test is satisfied if the claimant can prove on the balance of probabilities, that if they had been warned of the risk, they would not have had the operation or deferred it to a later date.

Thus, the starting point for establishing factual causation is the ‘but for’ test. If this is satisfied, then factual causation is established.

However, even if the but-for test cannot be satisfied, there are some exceptional circumstances in which the court will nonetheless find factual causation. This is done through the material contribution test and the material increase in risk test.

Question 31

When is the material contribution test used?

Answer 31

multiple causes; often applies to cases of clinical negligence

e.g: There may be 3 equally probable causes one of which is a breach of duty. The but for test would fail because there would only be a 33% chance that the defendant’s breach caused the claimant’ loss  doesn’t meet the balance of probability threshold.

Question 32

What is the material increase of risk test in McGhee v National Coal Board 1973

Answer 32

The medical evidence couldn’t establish that dermatitis was accumulative condition. It could have been caused by a single exposure to the dust. Medical evidence couldn’t show that both types of dust.

But for test failed -> Because the courts couldn’t say which dust caused dermatitis.

Material contribution test failed -> Because the condition could have been caused by a single exposure, so it can’t be proven that the causes worked together/cumulatively to cause the damage.

Since both tests failed, the courts developed a NEW test: The Material Increase in risk Test

Material increase in risk test:

• applies to cases concerning single agent industrial disease, where there is more than one potential cause of the claimant’s loss.
• C must prove that the breach made a greater than de minimus contribution to the risk -> D’s breach materially increased the risk of the defendant’s injury.

In Mcghee, by exposing the claimant to more dust the defendant increased the chances of the claimant contracting dermatitis.

Crucial feature of Material Increase in risk test -> There can only be one possible cause/agent causing the damage.

This test is limited to industrial disease cases.

Application of this test can be seen in the case Fairchild v Glenhaven Funeral Services Ltd [2003].

Question 32

What is the material contribution test?

Answer 32

The causes must have materially contributed to the claimant’s loss ie they must have made a more than negligible contribution to the loss. The claimant will be liable for all the loss.

Question 33

What are the 3 categories of Novus Actus Interveniens (NAI) to consider when establishing legal causation

Answer 33

1. Act of god/ natural events
2. Acts of third parties - must be highly unforeseeable

note: where the act of third party is medical treatment, the test for deciding whether the act broke the chain of causation is different: A medical act will not break the chain of causation unless it is so gross and egregious as to be unforeseeable (Wright v Cambridge Medical Group).

3. Acts of the claimant - must be highly unforeseeable

Question 34

What is apportionment?

Answer 34

A calculation determining each defendant’s apportion of liability to apply once factual causation has been established.

Where there are multiple tortious factors which are known to have caused part of the loss, the courts apportion liability between the defendants in a way that produces a practical result, providing compensation to the claimant while recognising the respective fault of the defendants.

Question 35

What was the decison:

Jobling v Associated Dairies [1982]:
FACTS: Due to the defendant’s negligence, the claimant injured their back and as a result suffered reduced earnings. Some time later, the claimant suffered a further back injury, (non tortious), arising from an illness unconnected to the accident. He was unable to work at all.

Answer 35

Held: the defendant’s liability ceased at the point that the further back injury developed. He did not have to compensate the claimant for the ‘vicissitudes of life’.

Question 36

What are the main steps in establishing remoteness

(note: 1 main question and then steps for yes/no)

Answer 36

1. Was the damage suffered reasonably foreseeable?
2. If NOT -> was the TYPE of damage reasonably foreseeable?
3. If YES (the damage/type of damage was reasonably foreseeable):

a. he defendant need not foresee the EXACT way in which the damage occurred. (Huges v Lord Advocate, 1963). As long as the type of damage is reasonably foreseeable, there is no need to foresee the exact wat in which it occurred.

b. The defendant need not foresee the EXTENT of the damage (Vacwuell Engineering v BDH Chemicals, 1971), even if the damage and/or the extent of the damage has been aggravated by the claimant’s own weakness -> Thin Skull Rule.

Question 37

What is the thin skull rule?

Answer 37

defendant must take their victim as they find them. (Smith v Leech Brain, 1962).

If the defendant can foresee the original injury, they are responsible for anything that flows from that injury even if the claimant suffers to a greater extent because of a pre-existing condition.

The thin skull rule applies to the claimant’s physical weakness and the claimant’s lack of monetary funds. (Lagden v O’ Connor, 2004). In this case, the defendant was liable for the full extent of the claimant’s economic loss, even though this was greater because of his impecuniosity.

Question 38

What are the 3 defences to negligence?

Answer 38

1. Illegality
2. Consent
3. Contributory negligence

Question 39

Who has the burden of proof in establishing a defence to negligence?

Answer 39

burden shifts to D

Question 40

Defence to negligence: Illegality

1. When does it apply?
2. What type of defence (partial/ complete..)
3. How does it operate?

Answer 40

1. where C was involved in an illegal activity at the time they suffered their loss
2. Complete defence -> if successfully proven then C will not receive any damages
3. Steps:
   a. Has C committed an illegal/ grossly immoral act?

b. if not -> Patel v Mirza test, court considers:
i) The underlying purpose of the prohibition which has been transgressed by the claimant, and whether that purpose will be enhances by denial of the claim.
ii). Any other relevant public policy on which the denial of the claim may have an impact.
c. Whether the denial of the claim would be a proportionate response to the illegality. Consider the factors of: 1) the seriousness of the conduct of the claimant, 2) its centrality to the tort, 3) whether it was intentional 4) whether there was marked disparities in the parties’ respective culpability.

Question 40

Defence to negligence: Consent

1. What type of defence (partial/ complete..)
2. How does it operate?

Answer 40

1. Complete defence
2. Elements:

i. C had capacity to give valid consent to the risks

ii. C had full knowledge of the nature and extent of the risks

iii. C agreed to the risk of injury
note: knowing of the risk must be distinguished from agreeing to it; consent can be implied or express; e.g. Morris v Murray [1991]. In this case, embarking on a flight with a drunken pilot was obviously dangerous, and the defense of implied consent succeeded. The risks were so glaring that the claimant agreed to risk of injury.

iv. C agreed voluntarily to run the risk of injury due to C’s neglgience

employment cases -> difficult to establish voluntary consent as unlikely that employees have a real option

rescuers -> Baker v T.E. Hopkins & Sons Ltd [1959]. When a doctor descended into a well containing poisonous fumes in an attempt to rescue two workers died, it was held that the agreement to the risk was not voluntary, as he acted out of an impulsive desire to save life.

Question 41

Defence to negligence: Consent

1. What type of defence (partial/ complete..)
2. When does it operate?
3. How does it operate?

Answer 41

1. partial defence
2. where C is also at fault and this fault has contributed to C’s loss
3. basis for contributory negligence is found in s 1(1) of the Law Reform (Contributory Negligence) Act (LRA).

Main element -> Jones v Livox [1952] where C failed to take reasonable steps for their own safety

Owens v Brimmell[1977] QB  In this case, the claimant failed to take reasonable steps for his own safety. A passenger is guilty of contributory negligence where they knew the driver had consumed excessive alcohol or they had gone drinking with the driver knowing they would later lose the capacity to appreciate the danger of being a passenger. Being drunk is not an excuse for failing to take reasonable steps for your own safety.

Froom v Butcher [1976]  In this case failure to wear a seat belt was contributory negligent as wearing a seat belt would have reduced or avoided injury.

Question 41

can consent be negated by statute

Answer 41

yes

S 149 of the Road Traffic Act 1988  Prevents the use of consent by motorists facing claims from their passengers. For example, a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result.

S 2 of the Unfair Contract Terms Act 1977  Applies to defendants acting in the course of business (but does not apply where the claimant is a consumer). Section 2(1) prohibits defendants excluding or restricting liability for death or personal injuries resulting from negligence. Section 2(3) makes it clear that a person’s agreement to or awareness of a contract term or notice purporting to exclude or restrict liability for negligence will not of itself be taken as indicating voluntary acceptance of any risk.

Section 65(1) of the Consumer Rights Act 2015  Prohibits traders, when dealing with consumers, from using contract terms/notices limiting or excluding liability for death or personal injury through negligence. Other damage is subject to s 62 - an exclusion clause is only binding if it is fair. Section 65(2) states that voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about the term.

Question 42

What is the aim of damages in tort?

Answer 42

To put the claimant in the position they would have been in but for the defendant’s tortious act. Thus this aim is “backwards looking”, because it’s seeking to restore the claimant to the position before the tort had happened.
Compensatory damages are divided into two categories:

Question 42

What are special vs general damages?

Answer 42

SPECIAL DAMAGES

These cover specifically provable and quantifiable financial losses. Such as
- Earnings lost UP to the date of trial
- Any medical expenses incurred up to the date of trial.

GENERAL DAMAGES

These cover future financial losses, which cannot be specifically proven. Such as:

• Future loss of earnings.
• Medical expenses / treatments that have not yet been incurred.
• Non quantifiable losses, such as compensation for physical injury. Ex compensation for the pain and suffering caused by a broken arm (award for pain suffering and loss of amenity).

Question 43

What is a Pain, suffering and loss of amenity award (PSLA)?

Answer 43

Two elements:

1. element of ‘pain and suffering’
2. ‘loss of amenity’ -> attempts to compensate for the effect of the injury on the claimant’s lifestyle, for example if they can no longer swim or walk.

Question 44

How does the court provide for future losses where there is a one-off future expense?

Answer 44

a lump sum will be given, eg the cost of adapting the home.

Question 45

How does the court provide for future losses where there is a continuing loss?

Answer 45

The basic approach is to take the annual expense and multiply it by the number of years the loss will continue to be suffered. This is known as the multiplier/ multiplicand approach.

such as future loss of earnings or recurring expenses of medical treatment or care.

once this overall amount has been calculated, make any deductions where appropriate

Question 46

How are remedies claimed if a person dies as a result of a tort?

Answer 46

a) Under the Law Reform (Miscellaneous Provisions) Act 1934, their estate can claim for any losses suffered by the deceased up to the date of death.

b) Under the Fatal Accidents Act 1976, certain family members may be able to claim compensation if they depended on the deceased. They may also be able to claim a bereavement award and/or funeral expenses.

The claimant’s estate can also recive a PSLA award.