Negligence Flashcards
Duty of Care
- Modern law of negligence comes from Lord Atkin’s neighbour principle (Donoghue v Stevenson): You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour.
- Modern 3 part test for DOC (Caparo v Dickman):
1. Was the loss/damage reasonably foreseeable? (Kent v Griffiths)
2. Is there sufficient proximity between the parties? (Bourhill v Young)
3. Is it fair, just, and reasonable to impose a DOC? Looks at public policy, what’s best for society as a whole. Is D a public servant? More reluctant to impose a DOC on police (Hill v CC of WY). Would allowing the claim open the floodgates to a new type of claim? (Alcock v CC of SY)
Breach of Duty
- If D falls below the standard of the reasonable man would have reached in the circumstances he has breached his duty (Blyth v BW), the reasonable man is neither over-confident or over-apprehensive.
- Is D a special D?
1.Professional is judged by the standard of the reasonable competent qualified professional (Bolam).
2. Trainee professional is judged by the standard of the reasonable competent qualified professional (Wilsher).
3. Child is judged by the standard of a reasonable child D’s age (Mullins v Richards).
4.Learner driver is judged by the standard of a reasonable qualified driver (Nettleship v Weston).
5. DIY judged by standard of the reasonable householder doing a DIY (Wells v Cooper). - Must take into account risk factors when assessing what standard the reasonable man has to reach, these can raise or lower the standard:
1. Size of the risk Bolton v Stone) reasonable man is not expected to take precautions where the risk is small.
2. Seriousness of harm to C (Paris v Stepney BC) where the potential harm too C is great, the reasonable man should take precautions even if the risk is small.
3. cost and practicality of taking precautions (Bolton v Stone) reasonable man not expected to spend vast sums of money avoiding a risk that is very small.
4. benefit to taking the risk (Watt v Hertford CC) the reasonable man could be expected to take more risk in an emergency situation or where there is a benefit in some way.
5. is the risk known about at the time of the accident (Roe v Minister of Health) if the risk of harm is known there an be no breach.
Damage resulting
- Causation in fact (Barnett, ;but for’ D’s actions, C’s injuries/losses would not have occured).
- Is there multiple possible causes?(Wilsher v Essex AHA, the claim will fail).
- Can C show the D’s breach contributed to his loss/damage? (Bannington Castings, unless C can show D’s breach contributed to his loss).
- Intervening acts (Smith v Littlewoods, if they are reasonably foreseeable will not break chain of causation. Treatment by doctors breaks chain if it is inept or wrong).
- Remoteness of damage test (Wagon Mound, the damage suffered by C has to be reasonably foreseeable by D at the time of the breach of duty in order to not be too remote).
- Types of damage has to be foreseeable, not the extent (Hughes v Lord Advocate, boy burnt when paraffin lamp exploded, burns foreseeable so D liable).
- Thin skull rule (Smith v Leach Brain, must take your C as you find them; D is liable for pre-existing conditions of C).
Duty of Care Evaluations
+ The first and two parts of the Caparo v Dickman test are arguably just as they restrict duty in terms of foreseeability and proximity.
- The third part is vague, considers what is best for society as a whole and leaves lots of discretion to judge. E.g. reluctance to impose duty on police (Hill). In Michael, contacted police, violent ex attack. Two judges wanted to distinguish Hill as there was greater proximity. So less likelihood of floodgates argument. Robinson allowed C’s claim against police who has duty to bystander who was injured in arrest. No blanket immunity for police, but Hill still good law for police investigations.
- Robinson held three-part test should only be used in new types of claims. Disliked the f,j,r part of test. Said to use existing precedent to establish duty or extend law little by little using analogy and not look at public policy, but courts find it difficult to do. CA in Royal Dutch Schell and HC in Seddon applied CvD test, as its easy.
- Hospitals normally owe a DOC, but in Darnley refused to impose duty when C left A&E due to 4/5he wait. Held not f, j, r to impose a duty because he should be responsible for himself.
- local councils sometimes immure and no CvD test imposed. E.g. Femquest C’s claim of slipping on ice on bus stop was rejected as it was a normal hazard. Arguably should be left to parliament (elected). However, parliament won’t legislate due to lack of time. But the f, j, r part of CvD leads to uncertainty.
