Negligence Flashcards
What is Negligence?
Negligence is doing something a reasonable person would not do or failing to do something a reasonable would do as defined by Baron Alderson In Blythe V Birmingham water works
Robinson Approach ?
Robinson Approach states that there must be a pre-existing or analogous precedent for a duty of care to be established.
Robinson case example
Robinson V CC west Yorkshire police: knocked off my two police trying to apprehend a drug dealer.
HELD: when there is an existing, or analogous precedent then a duty of care can be established.
What are the 3 element of Caparo test
Foreseeable
proximate
Fair just and reasonable
Foreseeable
The court will ask is it reasonably foreseeable that D’s careless act will result into loss or injuries
case example; Kent V Griffiths
Proximate
The court will determine whether the parties are in relationship of proximity
Relatial proximity- relationship
Temporal Proximity -space and time
case example; Bourhill V Young
Fair just and reasoable
It must be fair just and reasoable for a duty of care to exist
case example; Hill V CC West Yorkshire police.
Breach of duty
For a successful claim in negligence, the claimant must demonstrate that the defendant has breached their duty of care.
Who is an Ordinary person?
An ordinary person is the man and woman on the London Underground.
An ordinary person will be held to the standartd of a reasoable person
Bolam test?
case example?
Bolam test is a test for professionals which questions if a reasonable persoon or competent body of professional opinion have acted in the same way.
Bolam V Frien Hospital
The Montogmery test
This requires the doctor telling his patient all risk involved in a procedure, medical treatment or surgery given
case example; Montogmery V Lanarkshire.
What is the rule with learners
A learner would be held to the standard of an experienced person.
case example; Netleship V Western
what is the rule with children
A child would be held to the standard of a reasonable child of their age.
case example; Mullin V western
What are the 5 risk factors which would be considered when a breach is established
Special characteristics
Size of risk
Cost and effort required for precaution .
Knowlege of danger
Public benefit
Explain special characteristics
case example?
Where a claimant is a special character, it is the responsibility of the defendant to increase proctection against potential risk
case example; Paris V Stephney BC
Explain size of risk
case example?
if the risk of the harm is likely, then precaution should be in place to reduce the risk as much as possible.
case example ; Bolton V stone
Explain cost and effort required for precautions
When the defendant has taken reasonable precaution to protect against a risk they are not expected to go large expense or effort to comepletely eradicate the risk
case example; Latimer V AEC
Explain Knowldge of the danger
case example?
When the risk is unforeseeable, then the defendant will not be in breach of their duty when the risk occurs
when the risk is foreseeable then the defendant will be in breach of their duty
case example; ROE V Minister of health
Explain Public benefit
case example?
Where the defendant is carrying out a risk which will have a public benefit such as saving a human life, this will outweigh the need to take precautions
case example; Watt V Hertfordshire CC
What is Factual causation
case example
But for the defendant actions, would the loss or damage have occured as it did when it did
case example; Barnett V Chealsea Kensignton
What are the three element of legal causation
Act of claimant
Act of third party
Act of God
Explain Act of claimat
case example?
Where a claimant does something unreasonable and unforeseeable then they will break the chain of causation
case example; McCkew V Holland, Hannen and cubbits
Explain Act of third party
case example;
Where a third party does soemthing unreasonable and unforseeable and causes injury to the claimant
knightly V John
Act of God
an act of God is an unforeseeable natural event which breaks the chain of causation
no case example
Explain Legal causation remoteness of damage
case example
The injury or damage must be reasonably foreseeable
The Wagon Mound
Explain the Thin skull rule
case example?
You must take your victim as you find them
case example; Smith V Leech brain
