Negligence Flashcards
Outline for a Negligence Question
Claim:
C has a claim in negligence against D for (injury/damage)
Duty of care:
Does D owe C a duty, for what?
Breach of Duty:
Pt 1: Question of Law: Did D fall below the reasonable objective standard )
Pt 2: Questions of Fac, Proving negligencet: (A, B, C & D)
Causation:
Factual cause - but for test (Barnett v Chelsea and Kensington Hospital)
Material contributions (risk/injury)
Remoteness
defences
remedies
conclusion
Breach Pt 2: Proving negligence, a question of Fact and Learned Hand Test
A - Probability/likelihood of risk/injury (Bolton V Stone)
B - Seriousness of injury (Paris v Stephney BC)
C - Cost of Prevention (Latimer v AEC LTD.)
D - Social value, is it worth the risk: The Compensation Act s1 2006 (Watt v Hertfordshire CC)
Balancing Act: Learned Hand Test (United States v Carroll Towing Co)
D is negligent if B < (P XL)
B - Cost of precaution
p - Probability of risk/loss
L - Seriousness/magnitude of loss
Remoteness
- The type of injury: Reasonable Foreseeability Test
- Novus actus interveniens
Is the kind of damage suffered by the C reasonably foreseeable at the time the breach occurred? The Wagon Mound (no.1)
Duty of care cases: Consumer to Manufacturer
Donoghue v Stevenson
- Lord Atkin’s Neighbour Principle
- Manufacturers owe a duty to all intended consumers, not just buyers
Grant v Australian Knitting Mills Ltd
- Lower courts held implied warranty of of fitness for purpose under the Sale of Goods Act
- Privy Court unanimously held duty extends to ultimate consumer of the product and that D was negligent in the manufacturing process
Incremental Approach for duty of care
Robinson v Chief Constable of West Yorkshire Police
…the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable
When to use Caparo V Dickman
when cases genuinely raise new issues;
cases where the courts were being asked to ‘depart from previous authorities’ or ‘consider an extension to the law of negligence’
Duty of care cases:
Road user -> road user
Employer -> Employee
Doctor -> Patient
Nettleship v Weston
- D held to the standard of a learned driver despite being a learner
- C and D were jointly responsible so damages were reduced by 50%
Billington v Maguire
- Van driver held liable for parking in dual carriageway, hazard lights were on and cyclist crashed into him?
Williams v Univ of Birmingham
- Was asbestos related-injury reasonably foreseeable to the Uni
- Uni owes duty to emplyees
- Case is not settled?
Roe v Minister v Health
- C became paralysed after being injected with anaesthetic which had been contaminated by disinfectant.
Duty of care cases:
Highway Authority -> Road user
Teacher -> Student
Prison officer -> Charges
Gorringe v Calderdale
- D is not liable for C’s negligence, however this contradicts Billington
- Common law duty does not always arise from statutory duty
Carmarthenshire v Lewis
- Schools owe a duty to take care of students
- D negligently let child run onto a road
Reeves v Commissioner of police for the Metropolis
- Police owed a duty to inmate who was effectively to be on suicide watch
- Police negligently left hatch open which was used in the suicide along with the inmates shirt, contributary negligence so damages reduced by 50%
What results in a breach of duty
‘doing something which a prudent and reasonable man would not do’ – Blyth v Proprietors of the Birmingham Waterworks
the court of appeal held that the reasonable man could not foresee the extreme weather events and did everything a reasonable man would do in terms of the waterworks, Therefor no breach
Falling below the reasonable objective standard results in a breach.
Glasgow Corporation v Muir [1943] AC 448: an objective, impersonal test
Test for breach is one of Foresight, from D’s perspective
Roe v Ministry of Health [1954]
Test tube had tiny cracks, anaesthetic was contaminated resulting in paralysis. held not liable and checking or tiny cracks had never occurred to anyone before therefore a duty, and breach of that duty cannot be imposed.
The standard for breach is objective
Nettleship v Weston
Lord Denning MR:
The objective standard is applied to both competent and learner drivers alike.
Wilsher v Essex AHA
Jr doctor will be held to the same standard as a fully qualified doctor
Suppressed Standard for breach of duty: Children
McHale v Watson [1966]
Parent sued 12 year old boy for injury he caused parent’s child, the boy was not held liable due to age
Suppressed Standard for breach of duty: Illness
Mansfield v Weetabix Ltd. [1998] 1 WLR 1263.
D was an employee of weetabix, he had a condition that he was unaware of. He was driving and crashed into property. He was not liable as he was unaware of the condition and could not have taken measures to avoid it.
cf Roberts v Ramsbottom
The defendant suffered a stroke whilst driving and knocked into a pedestrian.
The defendant was in breach of duty.
Suppressed standard for breach of duty: Emergencies
Das Intel Ltd. v Manley
‘The same standard of care is not expected of persons faced with emergencies.
Even where the situation allows some time for reflection, but still presents a person with a dilemma, the courts will be prepared to make allowances
Breach pt2: Proving Negligence
A. Probability of Injury
Bolton v Stone
Court found no breach, they thought about likelihood of harm, practical precautions and socially usual services. The cricket ball did not often jump over the fence.
Perry v Harris [2008]
No breach of D does their best in a given scenario
Breach pt2: Proving Negligence
B. Seriousness of Injury
Paris v Stephney BC [1951] AC 367.
C was blind in one eye, during his work metal flew into his good eye and was left fully blind. He sued his employer for not providing safety goggles. Court found there was a breach as he was not an ordinary employee, due to the negligence of his employer he was left blind so the court found there was a breach.
Breach pt2: Proving Negligence
C. Cost of Precautions
Latimer v AEC Ltd.
Cost of closing factory too high
Goldscheider v Royal Opera House Covent Garden Foundation
Career ending injury, opera house was liable as cost of P was low.
Breach Pt2: Proving Negligence
D. The social value of the activity/conduct
The Compensation Act 2006 s.1
A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—
a. prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
b. discourage persons from undertaking functions in connection with a desirable activity.
Watt v Hertfordshire
C, a fireman was injured trying to place equipment on a lorry that was feasible, D, the chief fireman ordered C and others to load the heavy jack onto the van but it fell, injuring C’s leg. He sued D (Fire department)
There was no breach of duty. The emergency of the situation and social value of the defendant’s conduct in saving a life outweighed the need to take precautions.
Suppressed standard for breach of duty:
professionals
McNair J Bolam v Friern Hospital Management Committee
The Bolam test
“ The test is the standard of the ordinary skilled man exercising and professing to have that special skill… (it) acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.”
The Bolam Gloss
Bolitho v City and Hackney HA [1998] AC 232, Lord Browne-Wilkinson at 243
‘In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion… But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible’.
Factual causation and legal causation (remoteness):
Factual causation describes whether D’s negligence played a legally sufficient role in bringing about C’s harm
Legal causation (remoteness) deals with whether D ought to be held liable to pay damage for that harm.
Causation: But for Test
Barnett v Chelsea and Kensington Hospital
But For test: When will causation fail
Wilsher v Essex AHA .
Several different agents in play, any of which may have caused C’s harm but none of which surmounts the balance of probabilities threshold. Causation must fail.
But For test Exceptions: Material Contribution to Injury
Bonnington Castings Ltd v Wardlaw
C developed pneumoconiosis as a result of inhaling ‘innocent’ as well as ‘guilty’ silica dust.
In any case of ‘cumulative causes’ where the harmful agent undoubtedly contributed to C’s damage, the ‘but-for’ test has to be modified.
Material Contribution to Injury
How much of the damage will D be liable for?
Williams v The Bermuda Hospitals Board
If the condition is a cumulative one and the extent of D’s contribution is known, they will only be liable to that extent.
But For test Exceptions: Material Contribution to Injury
Applying Bonnington
Same agent
Proof of breach
A de minimis contribution
In this case the tortious dust, despite being mixed in with non-tortious dust, materially contributed to C’s injury thus D was liable.
But For test Exceptions: Material contribution to risk
McGhee v National coal Board
This case introduced the material increase in risk test for causation, applicable in negligence cases where there is medical or scientific uncertainty on the causal mechanism
HOL: D was liable in negligence for causing C’s dermatitis as the exposure to the dirt had materially increased C’s risk of developing dermatitis
C was full given compensation for his dermatitis
But For test Exceptions: Material contribution to risk
Fairchild Principle
Fairchild v Glenhaven Funeral Services Ltd
Mesothelioma –possibly from a single fibre – it was impossible to prove scientifically which employer’s asbestos fibre/s had caused C’s mesothelioma. All that science could say was the greater the exposure to asbestos, the greater the risk of contracting the disease.
Each employer had materially increased risk of contracting disease: all employers liable – “joint and several liability”.
HL decided that normal “but for” test should be relaxed
Fairchild Principle; Compensation Act 2006 S3
:
where mesothelioma contracted due to negligent exposure to asbestos in course of employment; where more than one employer is involved (as in Barker), employee can claim full compensation from any one of responsible employers, who can then claim against other employer(s) for sum proportionate to their share of blame, and may be entitled to state indemnity if other(s) can’t be traced or are insolvent.
Causation Issues: Loss of Chance
Hotson v East Berkshire AHA
A loss of chance to avoid injury is not compensable in negligence
Gregg v Scott [2005] 2 AC 176. D misdiagnosed lump under C’s arm as non-cancerous. 9 months later, lump diagnosed as cancerous lymphoma. Cancer had spread. Chance of survival reduced
HL rejected loss of chance in personal injury cases.
Causation Issues: Failure to warn
Chester v Afshar
Failure to warn of risks in medical procedures will lead to negligence liability even if causation cannot be proven
Causation Issues: Supervening or overtaking causes
successive tortfeasors
Baker v Willoughby [1970] AC
Where D1 causes C a tortious injury, but that same injury would have occurred later, via a separate, successive and unrelated act committed by D2, D1’s liability for damages does not cease at the point at which D2’s tort occurs. The causation principle provides that D2 should be liable only for the damage which he inflicted upon c and no more.
Causation Issues: Supervening or overtaking causes
non-tortious reasons would have led to the same damage
Jobling v Associated Dairies Ltd [1982]
Where D has caused some injury to C and then, after the initial tort, but prior to trial, C suffers from an infirmity or illness which would have caused the same injury in any event – D cannot be liable for damages beyond the point at which the naturally-occurring physical infirmity arose
Legal causation: Remoteness
Consists of two parts…
- The type of injury: Reasonable Foreseeability Test
- Novus actus interveniens
A. A natural event
B. Intervening act of a third party
Duty to guard
Independent and voluntary
Negligent conduct
Deliberate and wrongful conduct
C. Act of the claimant
Legal causation: Remoteness
Reasonable foreseeability test
Hughes v Lord Advocate
If the kind of damage suffered is reasonably foreseeable, it does not matter that the damage came about in an unforeseeable way
Legal causation: Remoteness
Jolley v Sutton London Borough Council
The The Wagon Mound (No 1) [1961] AC 388 does not suggest that precise manner in which injury is caused and the extent of injury always need to be reasonably foreseeable to prove negligence, it can depend on the circumstances of the case
Where the claimant is a child, the court will typically not require that the precise manner and extent of damage be reasonably foreseeable to prove negligence
Legal causation: Remoteness
Eggshell Skull rule
Smith v Leech Brain & Co [1962]
Provided that the kind of damage is reasonably foreseeable, it does not matter that it is more extensive than could have been foreseen
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
Where an intervening act occurs, D1’s breach is not considered to have been legally responsible for C’s damage, and D1 will avoid liability altogether for any damage on, and from the occurrence of that intervening act
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
A Natural event
Carslogie Steamship co. v Royal Norwegian Govt
It was held that the defendants were only liable and responsible for the loss of profit resulting from the collision, not for further damage sustained by the natural events at sea. The claim for loss during the 10 day period was not awarded. The chain of causation had been broken by the natural event of the storms at sea
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
Third party intervention
Deliberate and wrongful conduct (e.g criminal conduct)
Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
Act of the claimant
McKew v Holland and Hannen & Cubbitts (Scotland) Ltd [1969] 3 All ER 1621
Weiland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
Suicide cases
Corr v IBC Vehicles Ltd
Kirkham v CC of the Greater Manchester Police
Reeves v Commissioner of Police of the Metropolis
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
Subsequent medical treatment
Where C is injured by D1’s breach and requires medical treatment as a result, and that treatment is negligently performed by healthcare practitioner D2, that negligent medical treatment will not constitute an intervening act – unless the medical negligence is so gross and egregious to be unforeseeable.
Wright v Cambridge Medical Group
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
Third party intervention
Duty to Guard
D decorator forgot to lock up when he had finished work
The house was burgled while it was unlocked
C homeowner sued D for negligence
Duty to take positive action can arise from contractual relationship, D was liable for the loss
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
Third party intervention
Independent and voluntary
The Oropesa [1943] P 32
In negligence, a reasonable act of a third party in response to the act of the tortfeasor is not a break in the chain of causation
The issues surrounded who was responsible for the death of the seamen, whether it was the Oropesa captain or the Manchester Regiment captain. Advice was sought on whether the captain’s actions of leaving the sinking vessel broke the chain of causation.
held that the deaths of the seaman were directly caused by the negligence of the Oropesa. There was no novus actus interveniens.
Legal causation: Remoteness
Pt 2 - Novus actus interveniens
Third party intervention
Negligent conduct
Knightley v Johns
D1’s negligent driving caused the blocking of a busy tunnel
D2, the police inspector, negligently forgot to close the tunnel and ordered C (a policeman) to drive back against the traffic to do so
C was hit by D3, another negligent driver
The judge held that only D1 was wholly responsible for the injury
Held (Court of Appeal)
D1 was not liable as D2’s negligence constituted a break in the chain of causation
D2 was liable for C’s injury
Rouse v Squires [1973] QB 899
Wright v Lodge [1993] 4 ALL ER 299
