Negligence Flashcards
What is the Tort of negligence?
The tort of negligence is concerned with compensating people who have suffered damage as a result of the carelessness of others
Established in Blyth v Birmingham Waterworks (1856) as “failing to do something which the reasonable person would do or doing something which the reasonable person would not do.”
How does a C establish liability in negligence
On the balance of the probabilities, they must prove:
1. That they were owed a Duty of Care
2. That the D was in Breach of Duty
3. That the C suffered damage caused by the D, which was not too remote
What is Duty of Care and how is it established?
Duty of Care is establishing a legal relationship between the parties. Used to narrow or widen scope of liability in negligence. C must prove D owed them a Duty of Care.
Can be proved by:
- Existing precedent/statutory obligation with ‘the Robinson Approach”
- the Caparo test when no precedent
What is the Robinson Approach
Created by SC in Robinson v CC West Yorkshire Police (2018), emphasising judge must first look at existing precedent (or statutory obligation) when deciding whether DOC exists
What are examples of categories of duty?
- Manufacturer and consumer - Donoghue v Stevenson
- Doctor and patient - Bolam v Barnet Hospital
- Drivers and other road users - Nettleship v Weston, Road Traffic Act 1988
- Employer and employee - Paris v Stepney
- Instructor and learner - Day v High Performance Sports
- Teacher and student - Simonds v Isle of Wight Council
- Parent and child
What did Donoghue v Stevenson (1932) establish?
C consumed ginger beer with decomposed snail, bought by friend, C became ill, so Lord Atkin created “neighbourhood principle” meaning manufactured owed duty of care go consumer
What is the Capraro test?
Where no statute or precedent exists, judges may use Capraro test to establish duty of care, 3 steps are:
1. Was the harm reasonably foreseeable
2. Was there sufficient proximity
3. Is it fair, just and reasonable to impose a duty?
How is it decided whether the harm was reasonably foreseeable in the Caparo test?
It is an objective test - it asks whether a reasonable person in the D’s position would have foreseen that in some way the act or omission might harm others
E.g. Kent v Griffiths (2000)
Was reasonably foreseeable that C’s condition would worsen if ambulance did not arrive promptly and no good reason given
E.g. Topp v London Country Bus (1993)
Driver of minibus left it unlocked with keys, not reasonably foreseeable it would be stolen and then run somebody over.
How is sufficient proximity established in Caparo test?
Proximity is the “closeness” between D and C either in a physical sense of space and time or through a legal relationship like manufacturer and consumer.
E.g. Bourhill v Young (1943)
Pregnant women miscarried after hearing motorcycle accident, not close enough
E.g. McLoughlin v O’Brien (1983)
Mother arrived in immediate aftermath of serious accident w/ family members, was sufficient proximity
How is it established that it is fair, just and reasonable to impose a duty?
This is where a judge makes a policy-based decision for the best interest of society when deciding to impose a duty to limit scope of claims.
E.g. Hill v Chief Constable of West Yorkshire Police (1990)
Not FJR to impose duty on police officer to catch killer sooner, could restrict future investigations
E.g. Capital and Counties plc v Hampshire CC (1997)
Although firefighters normally not liable for failing to put out fire, turning out the sprinklers, making damage worse made it FJR to impose duty
What is the floodgate argument?
Where judge is concerned that creating a new duty of care, it will open floodgates to large amount of claims in future
