Negligence Flashcards
Breach
-“Reasonable man test” what would the average person have do in D situation
X5
1)Probability of risk- R.M does not take high risks
-Low risk:Bolton v Stone cricket ball leaves ground 6 times in 30 years
-High risk:Miller v Jackson cricket in garden
2)Seriousness of risk- R.M does not take serious risks
-High risk: Paris v Stepney no giggle spark in eye man goes blind
3)Cost and Practicality- R.M does what they can afford
-High cost:Latimer saw dust (leaky floor) did what could afford
-Low cost:Paris v Stepney no goggles googles are cheap
4)Social utility-R.M takes risks to benefit society
-Deborn: left hand drive ambulance crashed were trying to Benefit society
5)Characteristics of the D: R.M must act same as any other in their profession
-Roe: Faulty batch of anaesthetic caused paralysis- not doctors fault
-Nettleship v Weston: learner driver: trainees must act as fully qualified person would
-Mullins v Proctor: 15 year old ruler fight- U18 judged by average person of same age
MAJORITY MUST BE SATISFIED
Damage
- Causation:Proving that the D caused what happened to the claimant
- Damage can be property or personal injury
- 3 things to prove
1) Factual causation - “But for test” but for the D actions the claimant would not have been damaged
- Barnett v Chelsea: hospital not to blame when man died from arsenic poisoning
2) Legal causation - Test of remoteness: was the damage R.F
- Wagon mound: oil damage foreseeable fire damage wasn’t
- Thin skull rule: take claimant as you find them
- Smith v leechbrain: man burnt lip lead to cancer
3) No intervening act - If the intervening act is R.F then the defendant is liable. If not R.F then not liable
- Corr: man head crushed eventually committed suicide. Suicide was predictable
- All 3 must be satisfied
Damages
-Compensation: to put the claimant in the same position they were before the negligence took place
-Two types of damage-Special,General
-Principle of mitigation: claimant must keep their loses to a minimum
1)Special
-Easy to calculate
-Costs that already be incured
-Eg: loss of earnings, medical expenses, travel expenses, direct financial loses (e.g phone)
2)General damages
-Difficult to calculate pecuniary- financial, non pecuniary- non financial
*-Pecuniary- future loses
-eg. Medical, future travel, future loss of earnings
*-Non-Pecuniary: other loses
-eg. Pain & suffering, carers, loss of amenity (enjoyment), cost of injury
*2 methods of payment
1-lump sum- usually special damages
2-structural settlement- usually general damages
Duty of care
- Orignally used the “Neighbour Principle” by Lord Atkins in Donoghue v Stevenson- snail in ginger beer
- Must take reasonable care not to injure your neighbour. (Anyone close to you physically or relationship)
- Replaced with the 3 stage test from Caparo v Dickman
1) Was the damage reasonably foreseeable - Is RF: Jolley v Sutton boy injured by boat
- Isn’t RF: Topp joy rider crashes bus
2) Was there sufficient proximity - Is SP:Osman v Ferguson teacher harassing student kills father
- Isn’t SP:Hill: police had no proximity to woman who was Killed by serial killer
3) Is it fair just and reasonable to impose duty of care - Is fair: C&C fireman turns off sprinkler
- Isn’t fair:Osman v Ferguson police should not be sued unless they acted very poorly
- All 3 must be satisfied for the to be a duty of care
Res ipsa loquitar
- The thing speaks for itself
- Usually the burden of proof is in the claimant to prove negligence
- But if you prove RIL the burden of proof reversed so the D has to prove they weren’t negligent
- 3 things to prove
1) The thing that caused the harm was in the defendants control
2) It would not of happened if someone wasn’t negligent
3) No other explanation for damage - Cases
- Scott: sugar fell on man-Negligent
- Mahon: swab left in body-Negligent
- Pearson: gas explosion cracked pipe-Not
Tracks
Claims under £5,000-county court- small claims track
Claims between £5,000-25,000- county court-fast track
Claims between£25,000-50,000-high court-multi track
Claims over £50,000-high court-multi track
2 exceptions
1)Personal injury claims under £50,000 always go county
2)Defamation claim go high court because worth a lot of money and complex
-Slander-verbal
-Libel-written
-Ruining someone’s reputation
Procedure how to make a claim
1) Write a letter of complaint
- Might settle claim here
2) Write another left called a “letter before action” threatening legal action
- Given 7 days to respond
3) Fill in a claim form and pay court fee
- £30-100 fee
4) Court sends a copy of claim to the defendant (disclosure)
- Asks for their “defence” given 7 days to respond
5) Court sends a copy of defence to claimant (disclosure)
- If the D does not give their defence then the claimant automatically wins
6) Both parties fill in “allocation questionnaire” with more details & court fee
- Up to £200
7) Parties told which court their cases will be heard in and which track
- Go to county court
- Go to high court
