negligence Flashcards
starting lines for a negligence AO1 paragraph
- the law of negligence is a foundational principle within tort law, serving as the basis for addressing breaches of duty, leading to harm. originating from the landmark case of Donoghue v Stevenson, the concept revolves around the duty of care one party owes to another. In order to establish negligence, three key elements must be present…..
what three key elements must be present to prove negligence?
- duty of care
- breach of duty
- causation of damage
what is negligence?
- an act or a failure to act which causes injury or damage to another person or their property
definition of negligence from Blyth v Birmingham Waterworks
-‘ failing to do something which the reasonable person would do or doing something which the reasonable person would not do’
what did Donoghue v Stevenson establish?
the ‘neighbour principle’
- the person is owed a duty of care by the defendant. in this case, it was the manufacturer
AO1 duty of care
- a duty of care is established through the application of the Caparo test:
- D must have reasonable foresight of consequence/the risk of harm as seen is Donoghue v Stevenson:
- D must be in a relationship of close ‘proximity’ with the claimant. This could mean that they are ‘close to’ the defendant in the physical sense (in time and space) as seen in Bourhill v Young, or it could be seen that the proximity is created through a legal relationship as seen in Caparo
- it must be fair just and reasonable to impose a duty of care. this will require the court to consider factors such as public policy when determining whether it would be just and reasonable to impose a duty of care.
what is the caparo test?
- D must have reasonable foresight of consequence/the risk of harm as seen is Donoghue v Stevenson:
- D must be in a relationship of close ‘proximity’ with the claimant. This could mean that they are ‘close to’ the defendant in the physical sense (in time and space) as seen in Bourhill v Young, or it could be seen that the proximity is created through a legal relationship as seen in Caparo
- it must be fair just and reasonable to impose a duty of care. this will require the court to consider factors such as public
AO1- breach of duty
- D must breach their duty by failing below the standard of the reasonable man in the same situation.
- the standard is an objective one (Nettleship v Weston).
- however, many factors can be taken into account in determining where the standard should be set.
- these include the likelihood of harm, the seriousness of harm, the cost of prevention and the social utility of the conduct
AO1- causation of damage
- D’s acts or omissions must have caused the harm
- factual causation is established where ‘but for’ the defendant’s act/omission, the harm would not have arisen (Barnett)
- the harm must not be too remote from the defendant’s act or omission (wagon mound)
there must be no break in the chain of causation i.e no new intervening act
the law since 2018- Robinson v Chief Constable of West Yorkshire
- this case established that the caparo test only needs applying in new and novel cases and that the courts should generally establish a duty by looking at existing duty situations and one with clear analogy
- old lady pushed over by an officer on duty when in close physical proximity to the officer
- officer was liable of negligence as he had a duty of care to the public despite being in active pursuit
the law now on duty of care
the Caparo test does not have to be strictly applied in every case, instead, the courts should look to existing statutes and precedents and identify clues through analogy
what is a case relating to- fair, just and reasonable to impose a duty
hill v chief constable of west yorkshire
what are risk factors regarding a claimant?
- has the claimant any special characteristics which should be taken into account?
- what is the size of the risk?
- if there is a higher risk of injury, however, then the standard of care is higher
- have all appropriate precautions been taken?
- were the risks known about at the time of the accident?
- is there a public benefit to taking a risk?
what is the difference between damage and damages?
- damage is the legal test of loss to the claimant from a breach of duty
- damages is the compensation paid to the claimant who proves the defendant is negligent
what is the ‘but for’ test?
if it can be proved that BUT FOR the defendant’s action or omission injury or damage would not have occurred, then there is no need to find legal causation.
