Negligence Flashcards
Problem Question
Structure for negligence
Intro
Duty of Care
Breach of Duty
Damages
Possible Defences (if relevant)
Conclusion (+ remedies if relevant)
Intro
- Claimant burden of proof
- Balance of probabilities
- 3 elements of a negligence claim (Duty of c are, Breach of duty & damages of which were not too remote)
Duty of care
- Robinson approach
- Caparo test
Robinson approach
- Robinson v CC West Yorkshire Police
- Manufacturer & consumer (Donoghue V Stevenson)
- Doctor & Patient (Bolam v Barnet Hospital)
- Drivers & other road users (including pedestrians) (Nettleship V Weston / Road Traffic Act 1988)
- Employer & employee (Paris V Stepney)
- Instructor & Learner (Day)
- Teacher & Student (Simonds V Isle of Wight Council)
- Parent and child
Caparo Test
- Harm reasonable foreseeable (Kent v Griffiths)
- Proximity in time/space/relationship between C and D (Bourhill v Young)
- Is it fair, just and reasonable to impose a duty (Hill V CC West Yorkshire
Breach of Duty - step 3
- Did D’s conduct fall below the standard of care expected from a reasonable person
- Reasonable Person Test
- Risk Factors
Reasonable Person Test
- objective
- Did they fail to act in a way a reasonable person would have/wouldnt have (Blyth V Birmingham Waterworks)
- Ignores inexperience (Nettleship v Weston)
Risk Factors
- Lower or higher the Duty of care required
- Probability/seriousness of harm (Bolton V stone (low probability)) (Haley V LEB (high probability)) (Paris V Stepney (Seriousness of harm))
- Practicalities & cost of precautions (Latimer)
- Social benefits (Day)
- Unknown risks (Roe V Minister of Health (no breach of duty))
Damage
- Factual Causation
- intervening act
- remoteness (Legal Causation)
- Thin Skull Rule
Factual causation
But for the D’s act or omission would D suffered damage (Barnett V Chelsea & kensington Hospital -> B would have died despite omission)(chester v afshar - But fir ds actions wouldn’t have suffered)
Intervening Acts
(Knightley V Johns -> Unreasonable conduct of others)
Remoteness
- Reasonably foreseeable?
- Extent nor way in which it happened need to be foreseeable (Wagon Mound (unforeseeable)/ Hughes (Injury foreseeable not extent)
Thin Skull rule
If type of injury or damage is reasonably foreseeable but more serious due to Claimant has a pre-existing condition -> D liable for all subsequent consequences (Smith V Leech Brain)
Possible Defences
- contributory Negligence
- Consent (Volenti)
- Contributory Negligence
C partly to blame = contributory negligence (potentially) -
- damages may be reduced by Judge according to claimant’s own negligence (Law Reform (Contributory Negligence) Act 1945 )
- Common: seatbelts (Froom V Butcher (If wearing a seatbelt made no difference no deduction should be made)) + helmets
Consent (volenti)
D accept/agree ro risk of harm = Consent ((volenti)) (Morris V Murray)
Conclusion
- Success in claim?
- Defences D might rely on or difficulties C might face
- What claimant might be awarded for damages (remedies)
Remedies
- Special damages -> Pecuniary losses -> pre-trial expenses/loss of property
- General Damages -> Pecuniary and non pecuniary losses -> future losses, Pain and suffering, Loss of amenity, specific injuries
- Lump-sum (one only payment) / Structured settlements S.2 Damages Act 1996 (life or specific time -> can be re-assessed)
- Mitigation of loss - C Duty to keep loss to reasonable level
Special consideration - Reasonable Person Test
Only consideration of special consideration:
- Children -> Standard of care = reasonable child of same age (Mullins v Richards)
- Amateurs -> Standard of care = against other reasonably skilled amateurs -> reasonable homeowner carry out (Wells V Cooper)
- Professionals/experts -> standard of care = competent experts in same field -> Substantial body of professional opinion support Ds action (Bolam V Barnet hospital)
- Medical -> patients must be fully informed of all material risks in treatment and reasonable alternatives (Montgomery v Lanarkshire Health Board)
