negligence Flashcards
what case defined negligence
Blyth v Birmingham waterworks
what is the burden of proof in negligence
the prosecution on the balance of probabilities
steps for negligence
- DOC
- breach of duty
- damage
- defences
- remedies
what are the 2 tests for duty of care
Robinson test and caparo test
what is the Robinson test
it is for existing precedent, under Robinson v CC West Yorkshire Police
what is the caparo test
for novel situations
what are the 3 parts of the caparo test
- was the harm reasonably foreseeable
- was there sufficient proximity
- is it fair, just and reasonable to impose a duty
was the harm reasonably foreseeable: explain
caparo test
must be foreseeable D’s acts/omissions could cause harm
it is objective- would a reasonable person have foreseen it would harm other
was the harm reasonably foreseeable case
caparo test
kent v Griffiths:
- reasonably foreseeable C’s conditions would worsen if ambulance did not arrive promptly
was there sufficient proximity: explain
this refers to the closeness between C and D:
- physical sense
- legal relationship
sufficient proximity case
Bourhill v young:
-pregnant woman miscarried after hearing motorcycle accident around corner
-> not close in time or space
is it fair just and reasonable to impose a duty: explain
this is a policy based decision focused on the best interests of society
is it fair just and reasonable to impose a duty case
hill v CC West Yorkshire police:
- not FJR to impose duty on police for failure to catch killer sooner
2 steps for breach of duty
- compare D’s conduct with standard of care expected from reasonable person
- consider risk factors that may raise or lower standard
what is the reasonable person test
an objective test-
D breached their duty if they failed to act in a way a reasonable person would have, or acted in a way a reasonable person wouldn’t have
what is the reasonable person
breach of duty
average intelligence and self control
case for the reasonable person
Glasgow corp v Muir
what does the reasonable person test ignore
particular characteristics such as inexperience
case for ignoring particular characteristics in the reasonable person test
nettle ship v Weston:
-learner driver crashed
- being a learner not relevant
3 special characteristics
-children
-amateurs
-professionals
explain special characteristic children
SOC compared to a reasonable child of the same age
case for special characteristic children
Mullins v Richards
-sword fight using rules
-conduct did not fall below standard of another young person
explain special characteristic amateurs
SOC compared to reasonably skilled amateurs doing same task
case for special characteristic amateurs
wells v Cooper
-judged against standards of other amateurs doing DIY
explain special characteristic professionals
judged against competent experts in same field
case for special characteristic professionals
bolam v barnet hospital:
D’s conduct must be consistent w a substantial body of professional opinion
the 5 risk factors
1.probability of harm
2.seriousness of potential harm
3.cost and practicality of taking precautions
4.potential benefits
5.unknown risks
explain probability of harm
if probability of harm is low, D will not be expected to take as much care to guard against the risk
case for probability of harm
- Haley v LEB
- used hammer to warn people against hole in road
- near a school for the blind, blind person fell into the hole
- probability of harm is high, workmen should have done more to guard against the risk
explain seriousness of potential harm
if harm could be serious, soc may be raised
reasonable person would take greater precautions
case for seriousness of potential harm
Paris v Stepney
- lost sight in one eye - employer under higher duty to provide protective goggles - risk of harm of becoming completely blind higher
explain cost and practicality of taking precautions
balance size of risk with the cost and effort to the D guarding against it
case for cost and practicality of taking precautions
Latimer v AEC
- injured after slipping on the floor - sensible precautions had been taken by laying sawdust to reduce effects of flooding - to eliminate risk would mean closing factory, disproportionate.
explain potential benefits
standard lower if there if greater public benefit to the activity e.g in an emergency
case for potential benefits
Day v High Performance Sports
- had to be rescued from rock climbing wall
- rescuer caused C to fall and become injured
- rescuing climber (benefit) outweighed potential risk, standard of care lower
explain unknown risks
if risk is not known, no breach of duty
case for unknown risks
Roe v Minister of Health
- patient became paralysed by a contaminated anaesthetic
- unknown to medical experts at time that contamination occurred so no breach
what does C need to prove for damage
that they suffered damage caused by D’s breach
4 factors to consider for damage
factual causation, intervening events, remoteness and thin skull rule
explain factual causation
but for test
case for factual causation
Chester v Afshar
- doctor failed to warn patient about risks involved in back surgery
- but for doctors failure to warn, C would not have had surgery
explain intervening events
can break chain of causation
case for intervening events
Knightley v johns
-D caused accident
-officer sent against flow of traffic, caused second accident
-conduct was unreasonable, D not cause of second accident
explain remoteness
only claim for types of losses which are reasonably foreseeable
case for remoteness
wagon mound
- D’s negligently spilled oil in water of the harbour - sparks ignited the oil causing fire damage - oil pollution damage was reasonably foreseeable, but damage by fire was too remote
explain thin skull rule in neg
D takes C as they find them
case for thin skull rule in neg
smith v leech brain
- C had rare cancer gene - burnt at work which brought on cancer and died - burn reasonably foreseeable, D had to take C as he found him - liable for death
what are the 2 defences for negligence
contributory negligence and consent
explain the defence of contributory negligence
C contributed to the damage, partial defence
what act allows judges to reduce damages according to extent C contributed
law reform act 1945
case for contributory negligence
Froom v Butcher
- C’s head injuries caused by not wearing seatbelt - damages reduced by 20% - if wearing no seatbelt or helmet would have made no difference, no deduction made
explain defence of consent
- C voluntarily agreed to a risk of harm with full knowledge of the risk
- complete defence, C will receive no damages
need to show C:
- knew nature and extent of the risk of harm
- voluntarily agreed to it
case for consent
- Morris v Murray
- spent afternoon drinking, C and D decided to take flight in D’S aircraft
- plane crashed, killing D and injuring C
- C voluntarily assumed risk of injury by accepting flight in aircraft by obviously heavily intoxicated pilot
2 types of remedies for negligence
special and general damages
what are special damages and what do they include
they are pre trial expenses from date of incident to date of judgment
includes pre trial expenses and loss of property
what are pre-trial expenses
- loss of earnings or expenses up to date of trial
- e.g medical or travel expenses
what is loss of property
- if destroyed, market value
- if damaged, cost of repair
what are general damages and what do they include
post-trial losses
pecuniary and non-pecuniary losses (not financial)
- future losses(future medical care, future loss of earnings )
- pain and suffering(appreciate their condition)
- loss of amenity(loss of things C enjoyed, damages increased if had particular skill or hobby)
- specific injuries
how can damages be awarded
lump sum (once-only award )
structured settlement (periodic payments)
what is D under a duty to do for damages
mitigation of loss
- C under duty to keep loss at reasonable level
