Negligence Flashcards
Negligence is a…. Based tort
Conduct
Where does negligence steam from?
Donoghue v Stevenson
Is negligence new?
Yes
What were courts searching for at the end of the 19th century?
A general principle to unite those dots of liability A principle that would establish the circumstances in which someone owed a duty of care to other people
What was the contractual idea?
You are only liable if you promised to do something Outside of special relationships This posed a particular problem in donoughue v Stevenson
What was the general principle in donoghue and Stevenson?
LJ Atkins neighbour principle- you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour
When did liability expand until?
1970s
What were the 1900s?
An age of principles- atiyah
The general theory of contract and tort appeared from…
Liability based upon general principles
Why the fault principle and not strict liability?
Ideology Material factors such as a positive and humane response to victims of industrialisation
Why does horwitz argue we have the fault principle not strict liability?
To insulate industrialists from liability
What are the three factors of negligence?
the BREACH of a legal DUTY to take care RESULTING IN DAMAGE undesired by D to the C
Criticisms of horwitz’s theory
A little too neat - ignores varying attitudes of judges- was not a pendulum shift from strict to fault principle- narrow legal theorising
What did the end of the 19th century see?
Shift in the attitude to workplace injury
The fault element
If you are at fault you are liableBut what about the C who has to bear the costs of injuries?
The duty element
Why do we impose this in the first place?Situations where no duty- drowning child A control mechanism
Causal element
Damage in a necessary ingredient of negligence A causal link between Ds lack of care and Cs damage
What is the basic idea of negligence?
The fault principleWhen conduct falls below a certain level of standard, D will be required to pay the damage that causes
What is a breach of duty?
A matter of falling bellow the standard of care that the law demands
Is a breach simply a question of fact?
No…. You need legal inference
What is negligence judged by?
Reference to foresight (by what D knew or ought to have known at the time of accident)
Roe v ministry
We shouldn’t judge a 1947 situation with 1954 spectacles
The reasonableness standard
The reasonable person- negligence consists of doing something a reasonable man would not have done, or omitting to do something a reasonable man would have done
Brown v rolls Royce
The reasonable person is the average person doing what everyone commonly does
Nettleship v Weston
The objective standard is not dependent upon the particular capacities of the individual defendant
Roberts v rams bottom
Stroke at the wheel of the car-!9 excuse failing to live up to standard
Mansfield v weetabix
Lost control, but unaware of disabling condition (and could not reasonably have been aware) not liable
What does the objective standard include and exclude?
Excludes characteristics of the individual but does include children and Mansfield and the particular circumstances in which individuals find themselves
Marshall v osmond
Emergencies and rescues are circumstances considered in the objective test
Bolam test
Skilled man You are judged against those of the ordinary skilled man professing to exercise that skill (A) acted in accordance with practice (B) is this practice reasonable
Maynard
Where there is a conflict of opinion between medical experts not open to the judge to choose between them
Bolitho
Bolam test correct BUT not obliged to hold that a doctor not liable for negligence simple because some medical experts testified that doctor’s actions in line with accepted practice Courts had to satisfy that the medic experts opinion was reasonable- unlikely to be found in reasonable
Conaghan v Mansell
The effect of allowing medical practitioners to define what is or is not reasonable, ‘the courts produced results whereby many severely injured patients go uncompensated’
Defreitas v o’brien
Doctors are effectively setting their own standards of care
Evaluation of medical protection
Assumption that medics are ‘doing good’Members of learned professionsTraditionally poor representation for claimants with insurers protecting NHS and doctorsJudges lack expertiseDanger of too much defence for the medical profession
Sidaway
At the height of bolam
Chester v afshar
A shift away from hard deference and critical stance taken towards clinician involved and acknowledged of importance of patients autonomy and right to self determination
Glasgow corp v Muir
Because judges are deciding the reasonable standard there is of course discrepancy
Subjective factors that effect decisions in cases
The judges: race, class, gender etc.
What is reasonable depends on…
The perspective of the person defining reasonableness
why is moving away from the fault principle not a bad thing?
Presumably the increased use of insurance means that more claims are likely to be met
The elements of the tort of negligence
- A legal duty owed by the defendant to the claimant to take care2. A breach of duty by the defendant 3. damage to the claimant cause by the breach, which is not considered by the courts to be too remote
What about the D raising a defence
May be able to raise a defence that may reduce the amount of damages
Bolton v stone
Claimant hit on head outside her house with a cricket ballHeld the cricket club owed her a duty of care and had breached that duty
Strict liability
You are liable without fault
Negligence liability
You don’t have to prove fault
Why did we move to a predominantly fault- based tort system in the 19th century?
- Influence of social and political thinking in the age of principles (positions of the workers changed)2. A positive response to victims of workplace injuries3. Strategic economic subsidisation of infant industries
What are the aims of the welfare state?
To help people who are in need
Why do we differentiate those who have been injured through someone else’s fault?
MoralityDeterrenceVindication
Why is loss spreading
The insurance companies pay from others premium payments
Must the insured pay for the uninsured?
NoAlthough denning disagreed
Why does D pay?
Often in a better financial position
Why do conaghan and Marshall argue that as a result of this loss spreading ‘from the very outset negligence proves paradoxical’?
Paradoxical- seemingly absurd Because it isn’t really the party at fault who pays- it’s the insurer
McFarlane
The reasonable man is a traveller on the London Underground
Nettleship
A learner driver held to the objective standard to one who has passed
Birch v Paulson
D not liable for the serious injuries suffered by a drunk pedestrian who stepped in front of her car
Philips v William whitely
Special skillsEar infection after piercing
Thompson
Lost hearing working at a shipyard Held- could sue after 1960s when it became industry practice to provide ear protection
Wilsher
DoctorHeld to the standard of a more senior position although in training(Bolam test)
Woolridge v sumner
Sued after being injured photographing a horse race, reasonable to expect harmNo claim
Foreseeability
The more foreseeable and injury is, the greater the possibility that the courts will find D liable for failing to take steps to avoid it
Beckett v newalls insulation
The more serious the potential injury, the more likely D will be found to have fallen below the required standard of care
Latimer v AEC
The lower the cost of taking precautions the more reasonable if would appear to be
Watt v Hertfordshire
He standard of care is lower in an emergency situation
The compensation act 2006
Enacted to address the perception of a growing compensation culture in the U.K.
Two questions to establish breach
- How the D ought to have behaved in the circumstances (what was the required standard of care in these circumstances?)2. How the D did behave- did they fall below the standard of care required?
What does atiyah say about negligence?
If you’re driving you’re normally liable Allows for even a reasonable man to make a mistake in the heat of the moment Sympathy and the fact that D will not actually pay the damages if found liable Law in the last 50 years had been expanding liability
If it’s common practice to speed then can you be let off?
NOCommon practice is only doctors
What happens if you have a previous criminal conviction?
You are assumed guilty and must prove otherwise- reverses the burden of proof
