Negligence Flashcards
To establish liability in negligence , the claimant must prove on the balance of probabilities that:
- the claimant was owed a duty of care.
2- the defendant was in breach of duty.
3- the claimant suffered damage caused by D, which was not too remote.
what is a duty of care?- provide a case.
for the D to be liable the claimant must prove that D owed C a duty of care.-Donoghue v Stevenson.
A duty of care can be stablished in one of two ways:
- Robinson approach.
2.the Caparo test.
what is the Caparo test
- the Caparo test is a 3 stage test that is used when their is no existing precedent in relation to the case.
1) what is the 1st part of the test and what does it explain? Also provide a case.
1) was the harm reasonably foreseeable-would a reasonable person in the D’s position have foreseen the risk.-Kent v Griffiths.
2) what is the second part of the Caparo test? what does it explain? and provide a case.
2) Is there sufficient proximity- the parties must be closely connected enough in time, space or relationship.-Bourhill v young.
What is the third stage of the Caparo test? What does it explain? and provide a case.
is it fair just and reasonable to impose a duty?-judges take any social or economic benefits to society, the floodgates argument. Robinson. v CC west Yorkshire police.
what is the Robinson approach?
instructs the courts to look for similar relationships, recognised by existing precedent.
what is the second part of liability in negligence? and what does it say?
Breach of duty- the claimant has to prove this duty has been breached.
how would we decide whether a duty of care has been breached?
- A comparison of D’s conduct with the standard of care expected from a reasonable person. reasonable person test.
2-risk factors.
what case can we use for the reasonable person test?
Blyth v Birmingham waterworks: If D has not acted in a way which a reasonable person would have the D will have breached their duty.
what special groups are their?
Children -Mullins v Richards
amateurs-Wells v Cooper
professionals-Bolam v Barnet Hospital.
FOR risk factors what are the 5 risk factors?
probability of harm-Bolton v stone
seriousness of harm-Paris v stepney
cost and practicality of precautions- Latimer v AEC.
Potential benefits-Day v high performance sports.
unknown risks- roe v minister of health.
what is the 3rd part of a liability in negligence claim?
damage- did the breach of duty cause damage to the D.
1-the loss or damage was caused by D’s breach.-FC
2-the loss or damage was not too remote.-LC
what is factual causation and also provide a case.
fc- But for D’s breach of duty, would C have suffered damage?-Chester v Afshar.
what is legal causation and also provide a case:
only the types of loss which were reasonably foreseeable when D breached their duty can be recovered.- the wagon mound.
what is the thin skull rule?
take the D as you find them- Smith v Leech brain.
Defences to negligence: what are they? also provide two cases.
-contributory negligence.-both the d and claimant are partly to blame-partial defence.-Froom v Butcher.
-consent.-complete defence- claimant fully consented.-Morris v Murray.
remedies: what are they?
special damages-up to the date of the trial-paid as a lump sum.
general damages-cannot be specifically calculated.-lump sum or structured settlement.
