Negligence Flashcards
Negligence protects against which 3 types of harm?
•personal injury
•damage to property
•economic loss
Negligence has 3 main elements (in order)
- Defendant owed a duty of care
- Defendant breached duty of care
- Breach caused damage to claiment
Negligence definition in Blythe v Birmingham waterworks
‘failing to do something which a reasonable person would do (omission) or doing something which a reasonable person would not do (an act)’
Who gets the burden of proof in a negligence claim?
The burden of proof is on the claiment
What is a duty of care?
‘a requirement that a person acts towards others in the public with the caution and attention a reasonable person in the circumstances would’
Following Robinson v chief of west Yorkshire police (2018) how do you establish a duty of care?
- See if there’s an existing precedent setting out duty
- See if there is statutory authority
- In the absence of of 1&2 the incremental approach and established principles
How was Robinson v CCWY used in the judgement of Darnley v Croydon Health services NHS trust?
Shows that even though a non medical staff they owe a duty of care to patients
What are the factors courts take into account when making decisions on duty of care?
- Loss allocation
- Protection of professionals
- The ‘floodgates argument’
- Deterrent value
What is a breach of duty?
Looking at the standard of care and when a person falls below that standard of care and is measured by an objective test
How do you measure with an objective standard?
Looks at how the ‘reasonable person’ and how they would react in that situation, ignores the defendants characteristics
What is the legal illustration in nettleship v western (1971)
A learner driver is held at the same standard as a passed driver
How does class of defendant effect duty of care?
Can lower or raise the duty of care for people such as professionals or children
Bolam (v Friern hospital management committee)
A doctor will not be liable if acted following a respected body of medicinal opinion
Montgomery v Lanarkshire
The bolam rule is not always necessary when giving medical advice
Whitehouse v Jordan
Can be found guilty of negligence if a mistake such as excessive force was used
Children and breach of duty?
Children are expected to have less of an understanding then an adult so should be held to a lesser duty of care
Factual causation and the but for test
Starting point in establishing liability, looks as if the damage would have happened but for the negligence
Wilsher (v Essex AHA)
When there are causes with only one negligence the rest innocent then not convicted
Fairchild (v glenhaven funeral services)
When there are multiple possible causes all of the same or similar effect them they can have partial responsibility
Remoteness of damage
If the damage is too remote, not foreseeable it cannot be recovered
Wagon mound 1
As the damage was too remote they could not recover the damage that was not foreseeable
