Negligence Flashcards
What is the first element of negligence
Duty of care
What is the second element of negligence
Breach of duty
Third element of negligence
Loss/damage caused
Blyth v Birmingham Waterworks Co (1856)- Quote?
“The omission to do something that the reasonable person would do, or doing something that the reasonable person would not do”
What are the four reasonable people?
Children and young people compared to other children and young people (Mullins v Richards)
Professionals are compared to other professionals (Balam)
Learner’s are compared to the qualified drivers (Nettleship v Weston
The ordinary man
What case highlights the use of the incremental approach?
Robinson v CC of West Yorkshire Police (2018)
What must courts consider with the incremental approach
1) Where there is an existing precedent the courts must assume a duty exists
2) Whether the courts can draw an analogous duty from a case with similar facts
3) Whether the case is novel and the Caparo 3 stage test is to be applied
What are the 3 parts of the Caparo test?
1) Was the loss or injury reasonably foreseeable?
2) Was there sufficient proximity between C and D?
3) Is it fair, just and reasonable to impose a duty of care on the D?
Risk factors for negligence
-Foresight of harm
-The likelihood of harm
-The cost and burden of eliminating the risk
-The severity of harm
-The social utility of D’s activity
Foresight of harm?
-The standard of care is based on what the reasonable man would have foreseen
-Case example= (Roe v Minister of Health) (1954)- Doctors couldn’t see cracks
Likelihood of harm?
-The courts also consider how likely it was that the harm/injury was going to occur
-If the harm was likely to occur D is expected to take reasonable precautions to minimise the harm
-cases (Miller v Jackson) ~~~>Harm much higher, than cricket club expected
Compare against case = (Bolton v Stone) (1915)
Reasonable Precautions
If the harm is likely to occur then D is expected to take reasonable precautions and minimise risk. What is reasonable depends on the circumstances.
Case example = (Latimer v AEC (1952)
Severity of harm
-If there is a risk of serious injury, either because of C’s vulnerability of the nature of D’s activity, then D is expected to take greater care. If they don’t they will be in breach
Case= (Paris v Stepney BC) (1951)
Social Utility
-The courts will consider the importance of D’s activity from a social utility perspective. The more important the activity the less likely D will be in breach
Cases: - Watt v Hertfordshire CC (1954)
- Tomlinson v Congleton BC (2004)
What 2 issues are looked at for negligence?
1) Factual Causation
2) Remoteness (Legal Causation)
What test would be used to determine whether C would have suffered harm anyway in spite of D’s lack of care
The ‘But For’ Test.
Which case highlights the ‘But for’ Test in negligence?
McWilliams v Arrol (1962) - steel erector fell to his death with safety belts removed from site although c didn’t wear them anyway. His widow sued for damages.
NOT LIABLE!
C wouldn’t of worn a safety belt regardless.
Remoteness
- C can only recover damages if the loss or damage isn’t too remote
- Only losses that are reasonably foreseeable can be recovered
What does Lord Denning tell us in - The Wagon Mound (1961)
‘If the consequence was one which was in the general range which any reasonable person might foresee… then it is within the rule that a person who has been guilty of negligence is liable for the consequences’
In which case do we see an exception to remoteness?
(Bradford v Robinson Rentals) - C had to drive 400 miles with windows down in freezing conditions
What is (Page v Smith) (1996) an example of?
That some types of injury must be foreseeable
What is a full defence to negligence?
Volenti Non-injuria (CONSENT)
What is a partial defence to negligence?
Contributory Negligence
What must D show for Volenti Non-injuria?
-Knowledge of the precise risk involved
-Exercise of free choice by C
-Voluntary
Case for Volenti Non-injuria
-Morris v Murray (1991)- C voluntarily accepted the risk knowing they had been drinking all day
Cases for contributory Negligence
-Sayers v Harlow Urban District Council (1958)-Toilet lock stuck
-Froom v Butcher (1976)- No seat belt passanger
