negligence Flashcards
key word for negligence
duty of care (link between claimant and defendant)
what is a claimant?
person making the claim
what is a defendant?
person defending the claim
what is the solution in civil law?
compensation
what is the aim of compensation?
to put the claimant in the position they were in BEFORE the negligence happened
who is your ‘neighbour’?
someone who is closely or directly affected by your behaviour
examples of your neighbour in law
- teacher + student
- parent + child
- doctor + patient
- driver + passenger/driver/pedestrian
- shopkeeper + customer
- cook + consumer
- college + student
- solicitor + client
what are the 3 stages to prove for a claim for negligence?
- duty of care
- breach of duty
- breach must have caused the damage
what is stage 1 of negligence?
duty of care
the c must prove that the c owed him a duty of care
what happened in the donoghue v stevenson case?
(snail in ginger beer)
lord aktin developed the ‘neighbour principle’ :
- d must take care not to injure their neighbour, this anyone closely or directly affected by your actions
what is the modern test from robinson?
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
when duty of care is not obvious we must use the CAPARO test, what is it?
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)
what does robinson state about the police being sued?
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))
side rule: what if the emergency worker makes the risk higher?
osman v uk
held: emergency services will owe a duty of care if they make the risk substantially higher
side rule: insurance
if d has insurance e.g. car insurance = then it is usually fair, just and reasonable to impose a duty
what is stage 2 of negligence?
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
definition for stage 2 of negligence
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
stage 2 - characteristics of a reasonable person
the standard that the d will be judged by depends on who they are
stage 2 - characteristics of a reasonable person
a) the expert/experienced person
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
stage 2 - characteristics of a reasonable person
b) the learner/inexperienced person
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
stage 2 - characteristics of a reasonable person
c) a child/young person
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
stage 2 - risk factors
how risky are the d’s actions?
risk factors can raise or lower the standard of care required of the reasonable person
stage 2 - risk factor
a) probability of harm
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
stage 2 - risk factors
b) magnitude of the risk
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
