Negligence Flashcards
What is negligence?
An act or failure to act which causes injury to another person or their property
-Blyth v Birmingham Waterworks Co 1856
Three elements of negligence
-D owes C a duty of care
-D breaches this duty
-The breach causes reasonably foreseeable injury or damage
The Neighbour Principle (Donoghue v Stevenson 1932)
You must take reasonable care to avoid acts or omissions you can reasonably foresee would be likely to injure your neighbour
The Caparo Test
Established in Caparo v Dickman
1. Was damage or harm reasonably foreseeable?
2. Is there a sufficiently proximate relationship between C and D?
3. Is it fair, just and reasonable to impose a duty?
Caparo part 1
-Objective test
-Would a reasonable person in D’s position have foreseen that someone in C’s position might be injured?
-Kent V Griffiths: Ambulance failed to arrive within a reasonable time. It was reasonably foreseeable that if the ambulance didn’t arrive promptly, C would suffer further illness.
Caparo part 2
-Duty can only exist is C and D’s relationship is sufficiently proximate (in space, time or relationship)
-Bourhill v Young: C wasn’t proximate to motorcyclist who crashed. D couldn’t anticipate, if an accident occurred, it would cause mental injury to a bystander.
Caparo part 3
-Even if first two elements are satisfied, courts can exclude a duty if they deem it to not be fair, just and reasonable to impose a duty
-Hill v Cheif Constable of West Yorkshire: unfair to impose duty on police as they didn’t know who killer’s next victim would be
Established duty situations
-Robinson principle established pre-existing duties
-Robinson v West Yorkshire Police: woman injured by police who were trying to arrest a drug dealer. a duty of care already existed by the police to not injure the woman.
Who is there a different standard of care for?
-Professionals
-Learners
-Children
Standard of care for professionals
Bolam v Friern Hospital Managment Committee established Bolam test:
1. Does D’s conduct fall below the standard of the ordinary competent member of that profession? (answer should be no)
2. Is there a substantial body of opinion within the profession that would support the cause of action taken by D? (answer should be yes)
Standard of care for learners (less experienced)
Principle set out in Nettleship v Weston:
Learning driver crashed causing instructor injury.
Learners are held to the same standard of the competent person of that skill/profession.
Standard of care for children and young people
The standard apllied is that of a reasonable person of D’s age at the time of the accident.
Mullin v Richards: ruler fighting case. treated at the standard of that of a 15 yr old school girl rather than an adult so no duty was breached.
Risk factors
When considering whether there has been a breach, the court will take into account factors which decide if the standard of care should be raised or lowered and ask:
would the reasonable person take more or fewer risks in the same situation.
Special characteristics of the claimant
Paris v Stepney Borough Council:
employers failed to provide protective goggles to employee who was blind in one eye, after an accident he became completely blind. employers held to a higher standard of care.
Size of the risk
Bolton v Stone -cricket ball case, had done everyhting they could’ve
Haley v London Electricity Board -trench dug by blind hospital without barriers, blind man fell in. greater care should’ve been taken
Cost and practicality of precautions
The courts will balance the risk involved against the cost and effort of taking adequate precautions to eliminate the risks.
Latimer v AEC Ltd: Company spread sawdust over factory floor to clean up flood. Court decided they had taken reasonable steps to minimise the risks.
Foreseeability of risk
If the risk is not foreseeable, there can be no breach.
Roe v Minister of Health: Cleaning solution got into invisible cracks of anaesthetic tubes causing C to be paralysed. Risk of contamination wasn’t known about
Public benefit of taking the risk
If there is an emergency situation, the court will allow greater risks and accept a lower standard of care.
Day v High Performance Sports: Worker rescued climber in an inappropriate manner causing her to fall. There was no breach in view of the emergency and the need to rescue C.
What is causation?
A link between D’s act or omission and the injury, loss or damage suffered by C.
Factual causation
But for test.
Barnett v Chelsea and Kensington Hospital Management Committee: three men were poisoned with arsenic . Hospital didn’t breach their duty by not examining C’s husband as he was already going to die from the act of being poisoned.
Remoteness of damage (legal causation)
The damage must not be too remote from the negligence of D.
The Wagon Mound case.
D will be liable if the type of injury was reasonably foreseeable, even though the precise way in which it happened was not.
Bradford v Robinson- employers were liable as some injury from the cold was foreseeable
The eggshell skull rule
You must are your victim as you find them.
Smith v Leech Brain and Co Ltd: burn at work brought onset of cancer. The burn was reasonably foreseeable, and this rule meant Ds were liable for the man’s death.
Contributory Negligence
- The Law Reform (Contributory Negligence) Act 1945
- Partial defence
- Sawyers v Harlow: Damages reduced by 25% due to carelessness of C’s attempt to get out of a jammed cubicle.
- Jayes IMI: Damages reduced 100% as C lost finger cleaning machine at work due to removing the safety catch.
