Negligence Flashcards
What is the definition of negligence
Failing to do something which a reasonable person would do or something a reasonable person would not do
What is duty of care
A moral or legal obligation to ensure the safety and wellbeing of others
How do you establish a duty of care
Refer to the case of Robinson v Chief Constable Of West Yorkshire Police
1.Find existing precedent- a rule established in previous case Nettleship v Weston
2. Find existing statute- written law that establishes a duty Road Traffic Act 1988
3. We use reasonable analogy which means to look for a similar case that can link a duty
How do we establish a breach of duty
Reasonable man test Blythe v Birmingham Waterworks
What are the different classes of defendant
Is there a learner- held to standard of reasonably competent Nettleship v Weston
Child judged against a child of the same age Orchard v Lee
Professional- held to standard of reasonable professional Bolam v Friern
Sports person- Condon v Basi
What factors may raise or lower the standard
Forseeablity of risk - Bolton v Stone
Special Characteristics of C or gravity of risk Paris v Stepney
The cost/practicality of precautions Latimer v AEC Ltd
Social utility- Watt v Hertfordshire
How to establish causation
Factual - But for test- Barnett v Chelsea
Legal - Was damage suffered reasonably foreseeable by the defendant at time of breach Wagon Mound NO1
Thin skull rule- take the claimant as they are found - Smith v Leech Brain & Co
Foreseeability of kind of damage rather than specific actual damage Hughes v Lord Advocate
What are the defences
Contributory Negligence(Law Reform Act 1945) - Partial defence where claimant partly contributed to their injuries. To set up defence defendant must show that claimant’s behaviour was below the standard of the reasonable person and that this behaviour contributed to the claimant’s loss- Froom v Butcher
Volenti (Consent)- Complete defence D has to show C had knowledge of precise risk involved had exercised free choice by the C and that the C had voluntarily accepted risk- Stermer v Lawson
What are the 2 main remedies
Damages which aim to compensate C financially
Injunctions aim to stop behaviour which compromises tort
What is the aim of damages
Restore the person to the position they would have been had the tort not been committed (Compensatory damages)
What are the two types of losses
Pecuniary e.g loss of earnings as result of injury- calculated by measuring in money
Non pecuniary e.g Loss of amenity- accountants and taxation lawyers required to calculate as it will be speculative
What are the 2 types of damages
Special damages- cover pecuniary losses they can be calculated exactly- eg loss of wages
General damages-cover non pecuniary and cannot be measured- loss of amenity
What is the law regarding mitigation
An injured party cannot recover damages for any losses which could have been avoided
How are damages paid
Lump sum settlements- When courts make an award for pain and suffering or loss of amenity they can only award a one and only lump sum C cannot come back to court
Structured Settlements- Periodic payments, involves interim payment to cover costs met by claimant before settlement. Second component is a series of payments normally payable in regular instalments Courts Act 2003 -these can be paid for pecuniary losses
