Negligence 2B Flashcards
What is the definition of Negligence?
The failure to do something where you had a duty of care to do so.
What are some examples of negligence?
Faulty products
Dangerous equipment at work
Dangerous shop
Medical
Road traffic Accident
Food poisoning
Dangerous play in organised sports
What does ‘tort’ mean?
Civil wrong
What is the standard of proof in civil cases?
Balance of probabilities
What is the purpose of tort?
To restore the injured party to original position.
What 3 things does the Claimant need to prove for the Defendant to be found negligent?
- D owed C a duty of care
- D breached that DoC
- That caused the damage to C (which was not too remote)
In what case was negligence created?
Donoghue v Stevenson
Until 2018, what test was used to determine if D owed a duty of care?
The Caparo Test
Where did the Caparo test come from
Caparo v Dickman
When would you need to apply the Caparo test?
Only when the scenario question literally says something about the situation being a ‘novel’ or ‘new’ situation.
What are the three questions in the Caparo test?
- Is the damage to C reasonably foreseeable?
- Is there a proximity between D and C?
- Is it fair, just and reasonable to impose a duty of care on D?
What is a proximity?
Physical closeness (being in the same place at the same time)
Or
Relationship (where C was dependent on D or because D had knowledge of C’s situation)
FRIENDS DO NOT COUNT (as it is hard to prove who your friends are)
Which case is now used instead of the Caparo test?
Robinson v CCoWY (west yorkshire)
What did the court say in Robinson?
If a duty has been proven to exist in a similar situation before, it should exist in the current case too. It is only in new/ novel situations where the Caparo test would be used.
In a case where imposing a Duty of Care WOULD be carried out, which case would be used in relation?
Jolley v Sutton
In a case where imposing a Duty of Care would NOT be carried out, which case is used in relation?
Bourhil v Young
Which case defines breach of duty?
Blyth v BWW
What does Blyth v BWC define breach of duty as?
D does not do something that a reasonable man would or D does something that a reasonable man would not.
What does Nettleship v Weston say?
Inexperience does not lower the standard of care.
What does Bolam v Friern Barnet HMC say?
Expertise can raise the standard of care.
The defendant will only be compared to a professional when
1) D actually has the skill of a professional.
2) D is acting in a way where they would be expected to be a professional.
What does Wells v Cooper say?
If carrying out DIY, D would not be compared to a professional but rather a reasonable person doing DIY.
What does Mullin v Richards say?
Age can lower the standard of care.
What are the four risk factors in deciding whether D has reached the standard of care expected?
Size of risk
Seriousness of harm
Practicability of precautions
Benefits of taking a risk
What is the definition of size of risk?
How likely the harm is it happen
What principle came from Bolton v Stone?
The reasonable man will take less precautions against a small risk of harm
What legal principle came from Miller v Jackson?
If the risk of harm is high the reasonable man would take more precautions.
What is the definition of seriousness of potential harm?
How bad the harm could be if it happens.
What legal principle came from Paris v SBC?
The reasonable man will take more care when the potential harm to C could be serious.
What is the definition of practicability of precautions?
How practical it was to take precautions to reduce the risk of harm.
What legal principle came from Latimer v AEC?
The reasonable man would take precautions which are proportionate to the size of risk and the seriousness of the potential harm.
What is the definition of potential benefits of taking the risk?
Is the benefit going to outweigh the risk?
What legal principle came from Watt v HCC?
The reasonable man would take a risk if the potential benefit to be gained outweighs the risk.
What must C prove that D’s breach was?
- Caused the damage.
- The damage caused was not too remote.
Which type of causation is used when deciding if the breach caused the damage?
Factual
Which case holds the ‘But for’ test for civil cases?
Barnett v C&KHMC (Barnett)
When will intervening acts prevent D from being liable?
When the actions are unreasonable and unforeseeable.
Which case is used for intervening acts when it does not break the chain of causation?
Reeves v MPC
Which case is used for intervening acts when it does break the chain of causation?
Wilkin-Shaw v Fuller
Which case says the type of damage must be reasonably foreseeable?
The Wagon Mound.
Which case says that how the damage is caused can be unforeseeable?
Hughes v Lord Advocate.
Which case says the extent of the damage can be unforeseeable?
Bradford v Robinson Rentals.
Which case says hidden characteristics or vulnerabilities do not break the chain of causation?
Smith v Leech Brain.
What is the structure of an evaluation?
Intro, 4 developed paragraphs including Point, Positive, Negative and a link back to the question, as well as a conclusion.
What are the 2 types of general defences?
Contributory Negligence
Volenti Non-Fit Injuria
What type of defence is contributory negligence?
Partial.
What type of defence is Volenti?
Full.
Where is contributory negligence defined in law?
The Law Reform (contributory negligence) Act 1945.
What does the Law Reform Act say about contributory negligence?
The damages awarded to the claimant can be reduced depending on the extent to which the claimant contributes to his own injury.
Give a case example where damages were reduced.
Sayers v Harlow UDC
How would you structure an evaluation of contributory negligence in a scenario?
- What did C do? Was it dangerous?
- If C didn’t do it, what would have happened?
- Would damages be reduced?
What are the 3 elements of Volenti?
- C knows the precise risk involved.
- C is able to exercise free choice.
- C voluntarily accepted the risk.
What is the definition of knowing the precise risk involved?
Knowing the nature of the actual risk not just a general risk.
What doesn’t matter when knowing the precise risk involved?
Whether C ‘should’ have known.
Which case is used with precise risk?
Stermer v Lawson
What legal principle came from Stermer v Lawson?
C must not know there is a general risk, he must know that there is a risk of what happened actually happening.
Which case is used with free choice?
Smith v Baker
What legal principle came from Smith v Baker?
Where C is forced into accepting the risk, he has not exercised free choice.
Which case is used for when someone has a duty to act?
Ogwo v Taylor
What legal principle came from Ogwo v Taylor?
Where C has a duty to act they are forced to act and cannot exercise free choice.
What case is used for voluntary acceptance of risk?
ICI v Shatwell
What legal principle came from ICI v Shatwell?
Where C is not being forced, he accepts the risk voluntarily.
