NEGLIGENCE Flashcards
definition of negligence
3 stage test:
• Did D owe C a duty of care?
• Was this duty breached?
• Did the breach cause damage to C?
what is stage 1?
1) The D must owe the C a duty of care.
• If they have an obvious duty relationship you don’t have to apply the CAPARO v DICKMAN test - ROBINSON.
• DONOGHUE v STEVENSON - You will owe a duty of care to your neighbour which is anyone directly affected by your actions.
what is the side rule for stage 1?
Side Rule: The police owe a duty of care to avoid causing, by a positive act, foreseeable personal injury to another person - ROBINSON.
what is stage 2?
2) The D must have breached the duty of care to the C. This is an objective test.
• Alderson B in BLYTH v BIRMINGHAM WATERWORKS defined a breach as “Doing something a reasonable man wouldn’t do or not doing something a reasonable man would do”.
• Therefore, the D will be in breach if they did not act reasonably.
what are the characteristics?
a) If D is an expert or possesses a particular skill then they will be judged by the standards of other reasonably competent professionals - BOLAM/BOLITHO.
b) If D is inexperienced/learner they are judged by the standards of someone experienced and competent (compared with a person of average skill) - NETTLESHIP v WESTON.
c) Children are judged by the standards of a reasonable child of a similar age - MULLINS v RICHARDS.
what are the risk factors?
• Risk factors can raise or lower the standard of care required of the reasonable person.
1) Probability of harm: More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against very small risks, but does take precautions against bigger risks, or risks that are more likely to happen - BOLTON v STONE.
2) What is the seriousness/Magnitude of the risk? : The court needs to consider how serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken - PARIS v STEPNEY COUNCIL.
3) The cost and practicality of precautions: If the cost of taking precautions to eliminate the risk is too great, the D may not be in breach of duty - LATIMER.
what is the side rule for stage 2?
Side Rule: Possible benefits of the risk - There’s some risks that have benefits for society, here there will be no breach - WATT v HERTFORDSHIRE COUNCIL.
what is stage 3?
3) The breach of duty must have caused the damage to the C. This is an issue of causation.
• Factual Causation: Was the D cause of damage in fact, so apply the ‘but for’ test. “But for the D’s actions would the damage have occurred - BARNETT v CHELSEA HOSPITAL.
• Legal Causation: Relates to the remoteness of damage meaning whether the damage to C was reasonably foreseeable or was it too remote. If the damage was unforeseeable then it may be too remote and the D will not be the cause in law - WAGON MOUND NO.1.
what is the side rule for stage 3?
Side Rule: The D doesn’t need to predict the precise way in which the injury was caused so long as injury of the same type was foreseeable - HUGHES v LORD ADVOCATE.
what about intervening acts?
There must be no new intervening act which breaks the chain of causation.
• Thin Skull Rule - The D must take their victim as they find them - ROBINSON v POST OFFICE.
