negligence Flashcards
what is the definition of negligence?
+ case
‘failing to do something which the reasonable person would do or doing something which the reasonable person would not do’ - Blythe v Birmingham Waterworks Co (act or omission)
what do you have to establish for there to have been a breach of duty?
duty = breach = loss
- The defendant owed the claimant a legal duty of care
- The defendant breached that duty
- The claimant suffered damage/loss as a result of that breach (causation)
- The resulting damage was not too remote
- The loss was of a type recognised at law
what is a duty of care?
A legal relationship between 2 people
what is the neighbor principle said by Lord Atkin?
must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.
Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation
what is the duty of care test in Caparo and Dickman
- was the damage or harm reasonably foreseeable?
- Is there a sufficient proximate relationship between the claimant and defendant
- Is it fair, just and reasonable to impose a duty?
what is the rule of care test in Robinson and Chief Constable of West Yorkshire
Robinson rule - don’t need to do the third bullet point of Caparo and Dickman (fair, just, and reasonable) unless it is a novel case or scenario (new case)
what is ‘reasonable’ in the courts eyes?
hypothetical person that the courts will use as a guide to what should have been foreseeable to the defendant at the time of their actions
Give 2 examples of unforeseeable acts
- Kent and Griffiths
- Orange and Chief Constable of West Yorkshire Police
Why does there need to be a proximity between the 2 parties?
to put some limit on those that can make a claim
2 examples where the defendant did owe a duty of care due to proximity of parties
- Law Society v. KPMG Peat Marwick
- McLoughlin v O’Brien
2 examples where the defendant did not owe the claimant a duty of care due to proximity
- Caparo and Dickman
- Hill and Chief Constable of West Yorkshire
- Bourhill and Young
why does it need to be fair, just, and reasonable to impose a duty of care?
- floodgates argument: so there aren’t too many claims which would overload the court system
- insurance: if the claimant is already covered by insurance, there is no need to create new precedent
example where it was not fair, just, and reasonable to impose a duty of care
Hill and Chief constable of West Yorkshire
example where it was fair, just, and reasonable to impose a duty of care
MPC and Reeves
what did the supreme court say should be considered when deciding if it was ‘fair and reasonable’ to impose a DoC in Mitchell and Glasgow City Council
- foreseeability of harm is not always enough to impose a duty of care;
- foreseeability alone is not enough to impose a duty to safeguard a person from criminal acts of third parties; and
- it is not fair, just and reasonable to impose such a duty where proper actions are being taken for the general good of the community despite those actions provoking another to commit a criminal act.
what are the 2 examples of proximity in duty care?
- physical proximity
- does not have to be physically close e.g. manufacturing company
example of physical proximity
AG and Hartwell
example of non physical proximity
Law society and KPMG
what does it mean by ‘fair just and reasonable to impose a duty?’
- considering what is best for society as a whole
- consider whether they would be opening flood gates
what case shows that it is unlikely to impose a duty on public authorities (FJR)
Hill v chief constable of west yorkshire
what is the next step after identifying a duty of care
that there was a breach of duty
what standard are professionals judged to?
standard of the profession as a whole
what are the 2 things about professionals in Bolam v Friern Barnet Hospital?
a. does the defendant’s acts fall below the average standard of professionals?
b. is there a substantial body of profession that would take support of the action taken?
what standard are learners judged at
plus a case
judged to the standard of a competent, more experienced person
Nettleship v Weston
what standard are children judged at
plus a case
the standard of a reasonable person of the defendant’s age
Mullin v Richards
what are risk factors in a breach of duty?
decide whether the standard of care should be highered or lowered
