Negligence Flashcards
What is the definition of negligence, including case and judge
Birmingham waterworks v Blythe baron Alderson ‘negligence is failing to do something which the ordinary person would do or doing something which the ordinary person would not do’
What are the 3 factors the claimant must prove to make a successful negligence claim
defendant owed a doc, doc was breached and that the breach was reasonably foreseeable
Which case set out the neighbour principle
Donoghue v Stevenson lord Atkins stated ‘ you must take reasonable care to avoid acts or omissions which you could reasonably foresee would hurt your neighbour..Your neighbour is someone who is so closely and directly affected by your act that you ought to have them in mind as being affected when directing thought to your act or omission’.
What did lord reid say about the neighbour principle
lord reid said that this should be a statement of principle
What are the 3 parts of the caparo dickman test
Foreseeability, Proximity and Fairness
What is meant by foreseeability in the caparo test
was the damage caused by defendant reasonably foreseeable to the defendant.
Subjective test as its judged on facts of each case
Case for caparo foreseeability
Kent v griffiths
What is meant by proximity in caparo dickman test
was relationship between c and d proximate enough for a duty to arise.
Case for caparo proximity
Bourhill v young
What is meant by fairness in the caparo test
would it be fair just and reasonable to impose a doc on d. Courts often find it’s not fair just and reasonable to impose a duty on public authorities like police because it may in turn lead to defensive policing therefore decreasing the quality of policing
Case for caparo fairness
Hill v chief constable of West Yorkshire police
Which case set out the current law on establishing a doc
Robinson v chief constable of West Yorkshire
Supreme court ‘was not hol intention to create a rigid test as this would be impractical…when deciding to impose duty courts should take more pragmatic (practical) approach ’
What exactly is the new law from Robinson v chief constable of West Yorkshire
There is no set test for establishing a doc
Judges can make decisions based on existing precedent, law can be developed incrementally
Caparo dickman can be used only for novel cases
What is a doc used for
To establish a legal relationship between the 2 parties
What is the standard of care
Defendants are judged against the reasonable man as set out by baron alderson. The reasonable man is an ordinary person performing the task competently , this is an objective standard. Eg. Reasonable driver, reasonable doctor etc.
Which case shows that the standard of care is objective
Vaughan v Menlove 1837. Defendants argument that he used his best judgment did not matter as his actions were judged objectively.
What is the standard of the reasonable learner and which case set this out
Learners are judged to the standard of the competent, more experienced person. Nettleship v Weston 1971. May seem unfair to learners however as far as motor incidents go insurance will cover and it would be unfair to say to the claimant that they can’t receive any compensation for injury just because defendant is still learning.
What is the standard for the reasonable child
Children are judged against the reasonable child of their age. Mullins v Richard’s 1998. Orchard v Lee 2009.
What is the standard for the reasonable professional and what case set this out.
Bolam v friends barnett hospital committee, claimant was not informed of risk that came with treatment and was not given relaxant drugs, substantial body of opinion said that drugs should only be given with reason and there was no reason this case therefore d was not liable. 2 stage test: 1. did ds actions fall below the standard of the ordinary competent member of that profession 2. Would there be a substantial body within that profession who would support ds actions. If the answer to the first is no and the second is yes then d is not liable.
What did Wiltshire v Essex area health authority set out
Trainee doctors are held to the same standard as professionals
What do courts first consider when it comes to risk factors
Should standard of care be lowered or raised
Would reasonable person have taken more or less care in same situation
What risk factors are considered
Special characteristics, size of risk, public benefit, precautions taken, were risks known
Special characteristics case
Paris v Stepney borough council - employers knew risk of eye injury was serious, although it was not necessary at the time to provide all workers with goggles they should have provided the worker with them. Cost of goggles was v small in comparison to the consequence
Cases regarding the size of risk
Bolton v stone, risk was small so defendant wasn’t expected to take great precaution. Haley v London electricity board, risk was high so greater precautions were expected.
Case for adequate precautions
Latimer v aec ltd 1953 - factory flooded and employers spread sawdust across the floor to prevent slipping, found not liable as they took all reasonable precautions.
Adequate precautions
Courts see whether cost of precautions balances with size of risk
Unknown risks
If risk of harm is unknown d is not liable
Unknown risk case
Roe v minister of health - was not known that small cracks in glass tube would cause claimant’s anaesthetic to become contaminated with cleaning solution
Public benefit
In emergencies standard of care is lowered and greater risks can be taken as courts understand that although a different decision may be made in hindsight, not all situations have the benefit of hindsight when speedy actions are being taken.
Public benefit case
Watt v Hertfordshire county council - firefighters didn’t secure jack to vehicle properly causing it to fall off and hit someone, found not liable as utility to save a life outweighed taking precautions. Day v high performance sport - c stuck atop of climbing wall the way d saved her was inappropriate and caused her fall, d found not liable due to emergency and need to rescue her
What is meant by ‘damage’
Damage was caused by breach of duty and that the loss or damage isn’t too remote
What are the 2 types of causation
1 Factual - idea that breach caused damage, if this isn’t found then there’s no need to consider legal causation
2 Legal causation - was loss or damage caused by breach reasonably forseeable
Test for factual causation and a case to show it in use
But for test ‘But for defendants act or omission would c have suffered loss or injury?’.
Barnett v Chelsea and Kensington hospital management committee - by the time c’s husband called the arsenic poisoning was already too late on for doctor to save him, so but for the doctor not saving him he still would have died
Test for legal causation
Was damage reasonably forseeable and a natural and probable result of the defendants actions
What can intervening acts do, Different types of intervening acts and their cases
Intervening acts can break chain of causation
Act of claimant Mckew v hollands - climbing downstairs after broken leg was novus actually interveniens causing more injury which d was not liable for
Act of nature carslogie steamships co v Norwegian government - d damaged c boat, c boat was then further damaged by storm, storm was novus actus interveniens so d wasn’t liable for the further injuries
Act of third party knightly v johns - police officer didn’t close tunnel after d crashed into c which caused c further injury
LC remoteness of damage
If damage is too remote d may not be liable. The wagon mound - d spilled oil, within following days sparks lit oil causing a fire on cs wharf, not liable as damage was too remote from ds negligent act
LC type of damage forseeable
If type of damage was forseeable then d is liable. Bradford v Robinson rentals - d should foresee damage from cold so was liable
LC must take claimant as you find them
Eggshell skull rule, if damage defendant made is worst due to a claimants pre-existing condition defendant is still liable for all damage. Smith v leech brain and co
