Negligence Flashcards
What is the definition of negligence?
Doing something that the reasonable man wouldn’t do or failing to d something the reasonable man would do
Who came up with the definition for negligence?
Baron Alderson
What are the 7 ways duty of care can be established?
Contractual
Public office
Relationship
Voluntarily
Limit harm caused
Statutory
Duty through precedent
What are the 3 sections of negligence?
Duty
Breach
Damage
What is the neighbour principle?
Individuals have a DOC to anyone who they think could potentially be affected by an act or omission
What case was the neighbour principle set out in?
Donoghue v Stevenson
What is the case and held for DOC?
Robinson v CCWP- Police now owe a duty of care to the general public
What does the caparo test do and what is the case it was set out in?
Caparo v Dickman- update of the neighbour principle to see if the D owes a DOC to the C
What is the caparo test used for?
In novel cases where it is not clear if a DOC was owed
What are the 3 elements of the caparo test with cases?
Was damage or harm reasonably foreseeable (Kent v Griffiths)
Is there a close relationship between the claimant and defendant? (Bourhill v Young)
Is it fair, just and reasonable to impose a duty? (Hill v CCWY)
What is breach of duty?
If there was a DOC established, the duty may be broken (objective test)
How is BOD judged and case?
To the standard of the reasonable man (Vaughan v Menlove)
What are the 3 standards people are judged against for breach of duty?
Professional standard
Learners
Children and young people
What is the reasonable man test?
People are judged to the standard of an ordinary man with the same skill set performing that task
What does the case of Vaughen v menlove say?
The reasonable man would not have put haystacks near cottages
what is the rule for professionals?
Professionals are to be judged to the standard of the professional as a whole
What is the test set out in Bolam v Friern Barnet Hospital?
BOD if:
D’s conduct fell below the standard of the ordinary, competent member of the profession
A substantial body of opinion within the profession wouldn’t support the course of action taken by D
What is the held for the case of Montgomery v Lanarkshire Health Board?
A doctor has a duty to disclose anything serious during childbirth
What is the rule for learners?
They are to be judged to the standard as an experienced person
What is the case and held for learners?
A learner driver is expected to meet the same standard as a reasonable qualified competent driver
What is the rule for children and young people?
They are to be judged to the standard of another child of that age
What is the case and held for children?
Orchard v Lee- Horseplay and BOD would only be established if the playing would’ve been out of the norm for a 13 yr old
What are risk factors?
Would a normal person have acted in a particular way?
What are the 5 risk factors?
Special characteristics
Size of risk (higher risk requires greater care)
Have all appropriate precautions been taken?
Were the risks know?
Was there a benefit to taking the risk?
What is the case and held for risk factors?
Paris v Stepney borough council- BOD as the duty was owed to a particular C not just reasonable workers
What is the case and held for a small risk?
Bolton v Stone- No breach as harm was low and D had taken all precautions
What is the case and held for a high risk?
Hayley v London Electricity- Breach and greater precautions should have been taken
What is the rule for size of risk?
The smaller the risk the lower the standard of care and the higher the risk, a greater standard of care is needed
What is the case and held for if all appropriate precautions have been taken?
Latimer v AEC Ltd- No BOD as reasonable precautions had been taken
What is the case and held for if the risks were known?
Roe v Minister of Health- No breach as it was an unknown risk at the time
What are the 2 cases and held for if there was a benefit to taking the risk?
Watt v Hertfordshire County council- No BOD as D’s conduct was to save a life which outweighed the need to take precautions
What is damage?
The claimant must prove that the damage was caused by a BOD
What is causation in fact and the case?
‘But for’ test
Barnett v Chelsea and Kensington
What is causation in law?
Was the damage reasonably foreseeable and it can’t be too remote
What case was the test for causation in law established in?
The Wagon Mount No.1
What does causation in law say about injury?
D will be liable if the type of injury was reasonably foreseeable even if the way the injury would occur wasn’t
What does the case of Bradford v Robinson rentals say? (CIL)
Frostbite was unusual but injury was reasonably foreseeable
What does the case of Doughty v Turner Asbestos say? (CIL)
Explosion was not reasonably foreseeable and was too remote
What are novus actus interveniens?
Intervening act which break the chain of causation
What are the 3 types of NAI?
Act of claimant
Act of nature
Act of third party
What is the case and held for act of claimant?
McKew v Hollands- taking stairs without using handrail and jumping 10stairs from the bottom was C’s own negligent act
What is the case and held for act of nature?
Carslogie Steamship v Royal Norwegian Gov- The storm was a NAI and the Carslogie was not liable for further damage
What is the case and held for act of third party?
Knightly v Johns- negligent order of a police officer could not be reasonably foreseen and was NAI
What is the rule for eggshell conditions?
You must take C as you find them
What is the case and held for eggshell conditions?
Smith v Leech Brain- burn was RF and because the man had an eggshell condition, D was liable for his death
What are the 2 main defences for negligence?
Contributory negligence
Consent
How much can damages be reduced if the defence of contributory negligence can be used?
Can be up to a 100% reduction (commonly used for injury claims)
What is the case and held for contributory negligence?
Sayers v Harlow Urban council- council liable for negligent maintenance, damages reduced by 25% because of the way she tried to escape
What is the 3 part test for the defence of consent?
The claimant had full knowledge of the risk involved
The claimant exercised free choice
The claimant voluntarily accepted the risk
What does S.149 of the Road Traffic Act 1988 say about consent?
The defence cannot be used for road traffic accidents as they must fully understand the nature of the actual risk
When will the defence of consent not succeed?
Where the claimant has no choice but to accept the risk, claimant must voluntarily undertake the risk of harm
What is the case and held for consent?
OGWO v Taylor- Defence of consent had no application and the D owed a DOC to the professional fireman
