Negligence Flashcards
What is negligence?
Negligence is a type of tort (civil wrong)
It includes personal injury and damage to property.
In a negligence case, who has the burden of proof?
The claimant has the burden of proof
This is against the defendant.
What standard must be met to prove negligence?
Must meet the balance of probabilities (51% +)
This means the claimant must show that it is more likely than not that negligence occurred.
What are the three things that must be proven to establish negligence?
- A duty of care was owed
- The duty was breached
- The breach caused injury or damage that is not too remote
Each aspect may be addressed in separate cases.
Which case originally created the concept of negligence?
Donaghue v Stevenson
This case established the foundational principles of negligence.
Fill in the blank: Negligence includes personal injury and _______.
damage to property
True or False: The test for negligence has all three aspects combined in one case.
False
The three aspects are now broken up into their own cases.
What was the outcome of Donaghue v Stevenson?
“A person has a duty of care to anyone affected by the acts/omissions“ – Lord Atkin’s neighbourhood principal
What was the scenario in Robinson v CCoWY?
Police chasing drug dealer, knocked down an old lady
What did the Supreme Court state in Robinson v CCoWY?
- We use like for like cases (called common law precedent)
- If there’s no like cases, use “close analogy”
- Novel cases need extra investigation
What is a close analogy?
close analogy = not EXACTLY same, but very similar
eg. If C. opens crisps and rat comes out, it is not the same as Donahue v Stevenson so we use it as a close analogy, not a like case
What test is applied for novel cases?
Caparo Dickman test: foreseeability, proximity, fair just and reasonable
What are the three elements of the CD test?
- Would the reasonable person foresee a risk of damage?
- Is there proximity between claimant and defendant?
- Is it fair, just and reasonable to impose a duty? (Assumed true, with exceptions)
What was the case of Jolley v Sutton about?
Involved a rotten boat and a child who was injured
What happened in Bourhil v Young?
A motorcyclist crashed and died, leading to a pregnant woman looking for it, suffering shock and stillborn baby
Apply the CD test to Jolley v Sutton
- Foreseeable (rotten boat)
- Proximity (boat in park)
- FJR (reports made)
Apply CD test to Bourhil v Young
- NOT foreseeable (she chose to look)
- NO proximity (crash far from C.)
- FJR does not matter, other aspects failed
Summary of establishing DoC
Fill in the blank: Damage must be reasonably _______ to establish a duty of care.
foreseeable
Fill in the blank: Proximity must exist between the claimant and _______.
defendant
True or False: In establishing a duty of care, it is sufficient if only one element of the Caparo test is met.
False
What must be proven after establishing that a duty was owed?
D. breached this duty
This refers to the legal requirement to establish that the defendant failed to meet their duty of care.
How does Blyth v Birmingham Waterworks Co define breach?
Doing something the reasonable person would not do or not doing what a reasonable person would do
Essentially, what is breach?
D. has fallen below the standard of care of a reasonable person doing the same activity
What are the 3 factors affecting the “reasonable man” ?
- ANY trainee / apprentice (Nettleship v Weston)
- Profession / expertise **(Bolam v Friern Barnett HMC, Wells v Cooper)
- Age (Mullin v Richards)
In Nettleship v Weston, who is the defendant compared to?
Reasonably competent and qualified driver
This case illustrates that inexperience does not lessen the standard of care expected.
*ANY trainee/apprentice
What does the case of Bolam v Friern Barnet HMC establish?
D. compared to reasonably competent professional doing the same thing
Profession / expertise
What happened in Wells v Cooper?
An ordinary person putting a handle on a door caused a visitor to fall
This case compares the defendant to a reasonably competent amateur carpenter.
*Profession / expertise
In Mullin v Richards, how is the defendant compared?
The case involved a schoolgirl whose actions were compared to those of a reasonable 15-year-old.
Ruler flew into C. eyes
Age
When should D. be compared to professional?
- D. acting in a way where he would be expected to have skills/expertise (Nettleship v Weston)
- D. has special skills/expertise of a professional (Bolam v Friern Barnet)
Wells v Cooper and Mullin v Richards = NOT compared to professional
What is the significance of experience in determining the standard of care in Nettleship v Weston?
Inexperience does not alter the standard of care expected
This principle emphasizes that all trainees must adhere to the same standard regardless of their experience.
What are the four risk factors considered when determining if D has met the expected standard of care?
- Size of the risk
- Seriousness of harm
- Practicality of precautions
- Benefits of taking the risk
SMELLY
SOCKS
PONG
BADLY
How does the size of the risk affect liability?
If the risk of harm is small, it is unlikely that D has breached their duty.
The reasonable person will take less precautions against a small risk of harm.
- Case: Bolton v Stone – Rare cricket injuries → No breach, small risk.
- Case: Miller v Jackson – Frequent cricket injuries causing property damage → Breach, big risk.
How does the seriousness of harm affect liability?
If the potential injury would be serious, D must take more precautions to prevent it.
The reasonable man will take more care when potential harm to C. could be serious.
- Case: Paris v SBC – half blind worker given no goggles → Employers knew he was more vulnerable → Breach, no gear given to stop blindness.
How does practicality of precautions affect liability?
If preventing harm is cheap and easy, D should do it.
The reasonable man will take precautions which are cheap, easy and reasonable.
- Case: Paris v SBC – Providing goggles was cheap and easy.
- Case: Latimer v AEC – Oil spill, sawdust spread to absorb, but someone still slipped → No breach; nothing more D could do unless they closed the factory, which would be unreasonable.
How do benefits of taking the risk affect liability?
If the benefit to society outweighs the risk of harm, there is no breach.
The reasonable man will take a risk if the potential benefit outweighs the risk.
- Case: Watt v HCC – Firefighter injured by lifting equipment in emergency → No breach; benefit (saving a life) outweighed risk (back injury).
After it has been proved that D. owed C. a duty of care, and they breached this duty, what must C prove?
D.’s breach:
1. Caused the damage to C.
2. Damage was not too remote.
What proves factual causation?
But for test
What does the ‘but for’ test determine?
Whether D’s actions caused the damage.
In the case of Barnett v Chelsea HMC, what was the conclusion?
- C. drank poisoned tea, Dr said ignore it
Dr. was not liable.
What is legal causation?
Involves no op/sub test, only intervening acts.
What can stop D from being liable in negligence?
Intervening acts that are unforeseeable and unreasonable.
What was the significance of Reeves v MPC?
Actions of C.
What happened in Reeves v MPC
-suicide risk man hung himself in custody
-D. argued not liable, as it was C.’s actions
-it WAS reasonable and forseeable for C. to do that
-D. liable
Wilkin-Shaw v Fuller represents…
Acts of 3rd party
What was the role of the scoutmaster in the drowning case?
Wilkin-Shaw v Fuller
Encouraged crossing despite dangers.
What was deemed unreasonable and unforeseeable in the scoutmaster case?
Intervening act of encouraging crossing.
D. not liable
Fill in the blank: The __________ test is used for factual causation.
but for
What does ‘remoteness of damage’ refer to?
Damage is too remote if the type of damage is not reasonably foreseeable
What is the significance of the type of damage in relation to foreseeability?
Only the type of damage must be foreseeable, HOW / EXTENT of the damage can be unforseeable
In The Wagon Mound, what type of damage was unforseeable?
Damage caused by the ignition of oil leading to fire.
In the case of Bradford v RR, what was deemed unforseeable?
The extent of the damage.
What happened to C. in Bradford v RR?
C. drove in a rented van without a heater and suffered frostbite, losing fingers.
What rule applies in the case of Smith v Leech Brain?
The Eggshell Skull Rule.
What was the outcome in Smith v Leech Brain?
A spark triggered pre-cancerous cells which led to death from cancer.
What was the case of the cause of damage being unforseeable
Hughes v Lord Advocate
-lamps ignited a gas in tent leading to burns
-cause of damage = unforseeable
-type of damage = forseeable
What does the term ‘hidden vulnerability’ refer to in legal cases?
A condition that is not apparent but can lead to unforeseen damage.
What is the relationship between cause and foreseeability in legal terms?
The cause doesn’t have to be foreseeable for damage to be claimed.
What are the two general defences applicable to torts?
- Contributory Negligence
- Volenti Non Fit Injuria
What type of defence is Contributory Negligence?
Partial defence; it REDUCES damages
What is an example of contributory negligence?
Failure to wear seatbelt leading to a 15-25% reduction in damages
What does the Law Reform (C.N.) Act 1945 state?
The damages awarded to the claimant can be reduced depending on the extent to which the claimant contributes to his own injury
What case illustrates contributory negligence and its outcome?
Sayers v Harlow; claimant reduced by 25% for contributing to her own injury
In Sayers v Harlow, what caused the claimant’s injury?
Climbing a toilet roll dispenser and falling after putting all her weight on the roll holder
Fill in the blank: The damages awarded can be reduced by _______ based on the claimant’s contribution.
[the extent]
What is volenti?
-type of general defense
-C. consent
-full defence; D. not liable at all
What are the 3 elements of volenti?
A) C. knows precise risk involved in the situation
B) C. was able to exercise free choice
C) C. voluntarily accepted the risk
What is the case for proving that C. knew the risk in the situation?
Stermer v Lawson
C. must know exact nature of the risk, not just that there is a risk
What happened in Stermer v Lawson? What is the legal principle?
-borrowed C.’s motorbike
-wasn’t shown how to use
-C. injured
—>C. hadn’t been aware of the exact risk
What 2 cases proves that C was able to exercise free choice
Smith V Baker
Ogwo v Taylor
Duress, pressure, obligation (duty) ≠ free choice
What happened in Smith v Baker? What is the legal principle?
-C. complained of crane moving stuff over him
-D. claimed C. consented when he was eventually injured
—> Where C. is forced into accepting the risk free choice has not been exercised
What happened in Ogwo v Taylor? What is the legal principle?
-D. set fire to own house
-C. (Fireman) was burnt
—> Where C. has a duty, they are forced to act and cannot exercise free choice
What case proves that C voluntarily accepted the risk?
ICI v Shatwell
What happened in ICI v Shatwell? What is the legal principle?
-C. ignored instructions on handling detonator
-C. injured in explosion
—> C. voluntarily accepted risk by choosing to ignore instructions
