negligence Flashcards
what is negligence?
an act or a failure to act which causes injury or damage to another person or their property
3.5 (what makes the D liable)
1- if he owes the claimant a duty of care
2- if he breaches his duty and
3- the breach
a- causes
b- reasonably foreseeable injury or
damage
examples of pre-existing duties of care
parent/child
doctor/patient
teacher/student
road users
tests that can be used to establish a duty of care if there is not a pre-existing relationship
the neighbour principle
the caparo test
neighbour principle
donoghue v stevenson
-facts
-princple
mrs donoghue and her friend went to a cafe
her friend paid her for an ice cream and ginger beer
decomposed snail in ginger beer
mrs d suffered personal injury
established the neighbour principle
the neighbour principle
set out by Lord Atkin
‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’
when is the caparo test used?
if there is not an existing duty of care relationship and the situation is a novel one for which there is no existing precedent
in what case was the use of the caparo test decided?
robinson (2018) by the supreme court
robinson (2018)
-facts
-principle 1 and 2
C, an elderly lady, was injured by a drug dealer who was resisting arrest by the D (police officers)
1- if a novel situation arises for which there is no previous precedent, a duty must be established through the 3-part test in caparo v dickman
2- the police are now liable for the acts of their parties if those acts are the foreseeable consequence of acts by the police
the 3 parts of the caparo test
1- the damage must be reasonably foreseeable
2- there must be sufficient proximity between the C and D
3- it must be fair, just and reasonable to impose a duty of care
what are the three types of proximity (step 2 of the caparo test)
time
space
relationship
step 1 caparo test case
kent v griffiths
-facts
-principle
C was pregnant and had an asthma attack. It took 38 mins for an ambulance to arrive. This caused C a respiratory arrest (lack of oxygen), which caused her to miscarry as well as causing her substantial memory impairment and personality change. She wanted to sue London Ambulance service for negligence.
It was ‘reasonably foreseeable’ that C would suffer further illness if the ambulance did not arrive promptly. A duty of care was owed by the ambulance service when they initially accepted the call.
step 2 caparo test case
bourhill v young
-facts
-principle
C was pregnant and getting off a train. At the same time, a speeding motorcyclist crashes into a car and is killed. C hears the collision but does not see it. A short time later, she walks past where the incident happened and the body had been removed but there was alot of blood. C went into shock which led her to go into early labor, resulting in her baby being stillborn. C wanted to sue the motorcyclist’s family for negligence.
Motorcyclist did not owe C a duty of care as he could not anticipate that his accident would cause mental injury to a bystander. There was not sufficient proximity in this case, so she could not sue for negligence.
step one of proving a breach of duty
the objective test
we compare D to a ‘reasonable person performing the task competently’
what case does the current objective test come from (step 1 of part 2)
Blyth v Birmingham
step two of proving a breach of duty
special rules (professionals, learners/trainees and children)
if the D is one of these then certain special rules will apply when looking at the objective test to decide is a duty has been breached
(step two of part two) professionals
-parts 1 and 2
-where does the 2 part test originate from
-additional healthcare professional test
part 1- a professional is not only judged by the standards of a reasonable person of that particular professional but we must also look at whether..
part 2- ‘A ‘substantial’ number of people in that profession would have also done the same in the situation’
originates from the case of bolam
if D is a healthcare professional, the test from Montgomery will also apply
Montgomery v Lancashire
-facts
-principle
Mrs M had a vaginal delivery and was diabetic. She was not told she could have a C-section by the doctor. This resulted in her son being born with cerebal palsy
Doctors must provide information about all material risks. They must disclose any risk to which a reasonable person in the patients position would attach significance to.
(step two of part two) trainees/learners
-how are they judged?
-leading case?
-fairness/unfairness
Judged at the standard of the competent, more experienced person despite not having the experience. (also applies to those who have ‘recently qualified’).
leading case is nettleship v weston
argued to be unfair as they’re learners and unexperienced
argued to be fair for the claimant as regardless they still suffered injury/damage.
(step two of part two) children
-how are they judged?
-case and principle
-fairness?
children and young people are judged at the standard of a reasonable child of the child’s age.
Mullin v Richards - a child is compared to another child of the same age
fair as it ranges from 0yo-18yo, you cannot compare a 3yo to an 11yo.
step three of part two
risk factors
When determining if D has breached the duty, the courts also consider certain risk factors. These help to decide whether the standard of care should be raised or lowered.
what are the 4 risk factors
(step 3 of part 2)
degree of risk involved
cost of precautions
potential seriousness of injury
importance of the activity
risk factor 1 (degree of risk involved)
-explanation
-case (facts and principle)
The greater the risk, the more precautions a D will have to take in order for their conduct to be judged as acting at the standard of a reasonable person.
Bolton v Stone
Cricket ball hit off ground, injuring C. The ball had been hit off the ground 6 times in 30 years.
The greater the risk, the more precautions need to be taken. Otherwise you will fall below the standard of a ‘reasonable person’.
risk factor 2 (cost of precautions)
-explanation
-case (facts and principle)
The court will not expect the cost of precautions to outweigh the risk involved. Therefore D does not have t take excessive measures to guard against minor risks. A reasonable person would take adequate precautions given the circumstances.
Latimer v AFC
A factory flooded, and sawdust was put down as well as warning notices to prevent injury. C slipped and injured themselves, and tried to sue the factory. However the factory had not breached a duty due to precautions.
reasonable and adequate precautions taken (cost) , so no breach. Cost of precautions shouldn’t outweigh the risk involved.
risk factor 3 (potential seriousness of injury)
-explanation
The more serious the potential injury, the greater the level of care required. Characteristics of a person can be considered when deciding whether the standard of care has been met.
risk factor 4 (importance of the activity)
-explanation
Some risks are deemed acceptable if the risk undertaken is socially important
step 1 of part 3
did the breach cause the harm?
factual causation
legal causation
how to prove factual causation
but for test
but for test
but for the defendant’s act or omission would the injury/damage have occurred?
legal causation
-what can break the chain (intervening factors)
Act of claimant
Act of nature
A third party
step 2 of part 3
reasonably foreseeable injury/damage
-explanation
-case (facts and principle)
-(damage) what must be foreseeable?
The damage must not be too remote from the breach of duty by the defendant.
Wagon Maind
Oil leaked from D’s vessel and caused a fire as debris that was covered in oil ignited when welding took place on C’s wharf.
Damage must be of a foreseeable type, otherwise it is too remote from the breach (damage from oil spill=foreseeable, fire=not foreseeable).
Type of damage must be foreseeable, not extent.
egg shell skull rule
you must take your victim as you find them.
defences
contributory negligence
consent (volenti)
contributory negligence leading act
The law reform (contributory negligence) act 1945
definition and examples of contributory negligence
Where C suffered damage, partly as a result of their own fault.
eg not wearing a seatbelt, not wearing a helmet on a motorcycle, failing to follow safety instructions
how to prove contributory negligence
-step 1 and 2
step 1- C failed to take proper care in the circumstances for their own safety
step 2- The failure to take care was a contributory cause of the damage suffered.
definition and example of consent
When the defendant shows that the claimant voluntarily accepted a risk or harm/injury.
eg crossing a busy main road when the light is green.
complete defence
how to prove the defence of consent
D must show that C..
-knew of the risk involved (knowledge)
-exercised free choice (voluntary)
-voluntarily accepts the risk (agreement)
evaluation of cost
-guidance from experts
-items lost need to be obtained
-may be no reliable witnesses
-proving fault may be costly
evaluation of delay
-leads to financial/emotional stress for C
-in depth investigation (time consuming)
-D/C usually covered by insurance (insurance companies receive many claims)
evaluation of need for lawyers
-injured C may need one to help claim (they will try to negotiate a settlement)
-evidence needed (time and cost)
- may be ‘no win no fee’ policy (only available via solicitors and only if there is at least 75% of winning)
evaluation of confrontation
-lost case = more confrontation
-fault needs to be proven on behalf of C (leads to confrontation between parties and will make a settlement at court less likely)
reform
state run benefit scheme
-would scrap insurance companies and pay government.
advantages of reform
-much cheaper
-no need for insurance companies
disadvantages of reform
-lying
-more claims
