negligence

Question 1

key word for negligence

Answer 1

duty of care (link between claimant and defendant)

Question 2

what is a claimant?

Answer 2

person making the claim

Question 3

what is a defendant?

Answer 3

person defending the claim

Question 4

what is the solution in civil law?

Answer 4

compensation

Question 5

what is the aim of compensation?

Answer 5

to put the claimant in the position they were in BEFORE the negligence happened

Question 6

who is your ‘neighbour’?

Answer 6

someone who is closely or directly affected by your behaviour

Question 7

examples of your neighbour in law

Answer 7

• teacher + student
• parent + child
• doctor + patient
• driver + passenger/driver/pedestrian
• shopkeeper + customer
• cook + consumer
• college + student
• solicitor + client

Question 8

what are the 3 stages to prove for a claim for negligence?

Answer 8

• duty of care
• breach of duty
• breach must have caused the damage

Question 9

what is stage 1 of negligence?

Answer 9

duty of care

the c must prove that the c owed him a duty of care

Question 10

what happened in the donoghue v stevenson case?

(snail in ginger beer)

Answer 10

lord aktin developed the ‘neighbour principle’ :
- d must take care not to injure their neighbour, this anyone closely or directly affected by your actions

Question 11

what is the modern test from robinson?

Answer 11

where there is an obvious relationship, you will not need the CAPARO test, simply say there is an obvious duty. if it is fair, just and reasonable to impose a duty of care, the courts will establish a relationship

Question 12

when duty of care is not obvious we must use the CAPARO test, what is it?

Answer 12

1)was damage/injury reasonably foreseeable? (kenton v griffith) (yes=more likely to owe a duty)

2) is there proximity between c + d? (bourhill v young)

3) is it fair to impose a duty of care? (hill v chief constable)

Question 13

what does robinson state about the police being sued?

Answer 13

the police can be sued if they cause injury/damage by their positive act (they will not be liable for a failure to act (omission))

Question 14

side rule: what if the emergency worker makes the risk higher?

Answer 14

osman v uk

held: emergency services will owe a duty of care if they make the risk substantially higher

Question 15

side rule: insurance

Answer 15

if d has insurance e.g. car insurance = then it is usually fair, just and reasonable to impose a duty

Question 16

what is stage 2 of negligence?

Answer 16

the c must show that d was in breach of their duty - d is judged by the standards of a reasonable person - this is an objective test

Question 17

definition for stage 2 of negligence

Answer 17

alderson b - blyth v birmingham waterworks

a breach is where a d ‘‘does something a reasonable man wouldnt do or does not do something a reasonable man would do’’

this means you will be in breach of duty if you behave in a way that falls below the standard of a reasonable person

Question 18

stage 2 - characteristics of a reasonable person

Answer 18

the standard that the d will be judged by depends on who they are

Question 19

stage 2 - characteristics of a reasonable person

a) the expert/experienced person

Answer 19

the standard: if the d is an expert or possesses a particular skill - then they will be judged by the standards of other reasonably competent professional e.g doctor, mechanic, etc

key case: bolom - (electric shock therapy - no relaxant drug) / bolitho - (doctor did not help child as pager battery was low)

with the medical profession, if the doctor is following a body of medical opinion (other doctors will agree with them) then they will not be in breach, as they are acting reasonably

Question 20

stage 2 - characteristics of a reasonable person

b) the learner/inexperienced person

Answer 20

the standard: if d is inexperienced/learner, they are judged by the standard of someone experienced and competent (compared with a person of average skill)

key case: nettleship v weston (d was a learner driver - injured instructor)

held: no exception was made for the fact he was a learner, the standard isnt even lowered

Question 21

stage 2 - characteristics of a reasonable person

c) a child/young person

Answer 21

the standard: children are judged by the standards of a reasonable child of a similar age

key case: millins v richards (15 yr old girls were playing with plastic rulers)

held: a reasonable 15 yr old would not have foreseen the risk of harm of playing with rulers = no breach

Question 22

stage 2 - risk factors

Answer 22

how risky are the d’s actions?

risk factors can raise or lower the standard of care required of the reasonable person

Question 23

stage 2 - risk factor

a) probability of harm

Answer 23

the higher the probability of harm, the more precautions the d will be expected to see

key case: bolton v stone (cricket ball was hit out of a ground and over a 17ft high fence - 6 times over 30 yrs)

held: the risk of harm was so low that the owners of the ground were not expected to take extra precaution = no breach

Question 24

stage 2 - risk factors

b) magnitude of the risk

Answer 24

the more serious the risk, then the more care that needs to be taken

key case: paris v stepheny council ( c was blind in one eye - wasnt given goggles - a metal chip hit him in his ‘good’ eye and blinded him

held: as he was vulnerable, the risk was higher and they should have done more to protect him - breach

Question 25

stage 2 - risk factors

c) cost and practicality of precautions

Answer 25

if the cost of taking the precautions is low, your standard of care goes up. you will be expected to take these precautions

key case: latimer ( factory flooded and oil had spilt onto the floor. the company laid sawdust on the floor but c slipped

held: it was not realistic to expect them to close the factory down altogether in case somebody slipped. all practical precautions were taken so there is no breach

Question 26

stage 2 - risk factors

side rule: possible benefits of the risk (social utility)

Answer 26

there are some risks that have benefits to society (also known as social utility of the risk), here there is no breach

key case: watt v hertfordshire council (fireman injured by equipment being carried on a fire engine that was not adapted to carry that equipment)

held: the benefit of saving a victim trapped under a vehicle outweighed the risk resulting from moving the equipment in an unsuitable fire engine

Question 27

what is stage 3 of negligence?

Answer 27

the c must prove that the breach of duty actually caused their damage/injury, the key issue here is causation

Question 28

what are the two types of causation?

Answer 28

• factual
• legal

Question 29

factual causation

Answer 29

uses the ‘but for’ test (but for the d’s actions/omissions, would the damage have occurred anyway?

barnett v chelsea hospital (c was poisoned at work - dr sent him home - c died during the night)

held: d is not liable as the c would have died anyway even if the dr knew it was cyanide poisoning as there is no treatment

answer to ‘but for’ test:
- no = factual causation
- yes = no factual causation

Question 30

legal causation

(remoteness of damage)

Answer 30

is the damage to the c reasonably foreseeable or was it too remote?

wagon mound (oil from spill ignited by spark at dock by welder - damaged dock ship)

held: the fire was too remote and not reasonably foreseeable, so d was not responsible

Question 31

legal causation

side rule: precise type of injury

Answer 31

the d does not need to predict the precise way in which the injury was caused as long as an injury of the same kind was foreseeable

hugnes v lord advocate (paraffin lamp knocked down a manhole - caused an explosion children burned)

held: injury by burns from the lamp was foreseeable even if the explosion wasnt

Question 32

legal causation - intervening acts

Answer 32

these can break the chain of causation

robinson v post office (c slipped on an oily ladder - cut his shin - given an anti-tetanus injection - allergic and suffered brain damage)

held: d must take his c as he finds him and is responsible for ALL damage to c