Negligence

Question 1

What is the first part of negligence?

Answer 1

C may have a claim against the D in negligence. In order for the C to claim, it must be established that the D owed the C a duty of care, that the C breached the duty of care and that this breach caused the damage/injury.

Question 2

What is the first stage of negligence?

Answer 2

Firstly, it must be proven that the D owed the C a duty of care. In Donoghue v Stevenson, Lord Atkin established the ‘neighbour principle’, which said you owe your neighbour a duty of care. Your ‘neighbour’ is anyone who is directly affected by your actions. In the modern day test made by Caparo V Dickman, it established a 3 stage test. However, because the C and D were in a ?/? relationship, it is obvious that the D owed the C a duty of care (Robinson). Therefore, stage 1 is complete.

Question 3

What is the second stage of negligence?

Answer 3

Secondly, it must be established that the D breached the duty of care. Breach is defined by Anderson B in Blyth V Birmingham Waterworks as ‘doing something a reason person wouldn’t do or not doing something a reasonable person would do’. If the D had failed to act reasonably, they will be in breach.

Question 4

What are the characteristics of the second stage?

Answer 4

We must now consider what characteristics are relevant in this case;
1. An Expert - Bolom/Bolitho - judged by the standards of other reasonable competent professionals.
2. Inexperienced/ Learner - Nettleship v Weston - judged by the standards of someone reasonable and competent.
3. Children - Mullins V Richard’s - judged by the standards of a child of similar age.
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Question 5

What are the risk factors?

Answer 5

We must now consider the risk factors, which either raise or lower the standard of care expected.
Firstly, the probability of harm is high, the D must do more to prevent the risk (Bolton/ Stone).
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Secondly, if the magnitude of the risk is high, this means the probability of harm is severe. The D must do more to protect (Paris V Stepney Council).
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Finally, if the practically of taking the precautions are low, and it is reason to do so, the D will be expected to take the precautions (Latimer V AEC).

SIDE RULE - Social utility - if the benefits to society of taking the risk, then the D will not be in breach (Watt V Hertfordshire Council).

Question 6

What is stage three of negligence?

Answer 6

Finally, it must be established that the breach of duty caused the damage/ injury. This is an issue of causation - factual and legal causation.
Factual causation uses the ‘But for’ test , which asks ‘But for the D’s actions/ omissions, would the damage/ injury have happened anyways?’ (Barnett v Chelsea hospital).
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Legal causation must be established. This asks whether the damage/ injury was too remote ( Wagon Mound No 1). If the damage was too remote it means it’s not foreseeable or ‘out of the blue’. If it is foreseeable then it may be too remote, the D is not the cause in law.
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SIDE RULE - D does not need to see the precise way the injury was caused as long as injury to same type was foreseeable ( Hughes V Lord Advocate).

Question 7

What is the intervening acts?

Answer 7

There must be no intervening acts that break the chain of causation. Thin Skull Rule - you must take C as you find them. (Robinson v post office/ Smith V Leech Brain Co).

Question 8

What’s the final part of negligence?

Answer 8

Conclude, whether the C will be successful in the claim.