Negligence

Question 1

Negligence - definition

Answer 1

Whether one persons act, or failure to act gives rise to legal claim for the loss or injury suffered by another person

Question 2

Negligence - requirements

Answer 2

Duty of care
Breached that duty
The breach caused the loss or damage
If established then
Remoteness - being extent of damage suffered by claimant attributed to defendant
Any defences - consent, illegality, exclusion of liability

Question 3

Establish Duty of care

Answer 3

Established duty situations - doctor/patient, road users, employer,employee
Originally established donoghue v.stevenson 1932-neighbour situation - reasonable foresight and relationship of proximity
Redefined in Camparo industries Plc v dickman 1990 now known as Camparo test:

Question 4

Caparo test :

Answer 4

Reasonable foresight of harm - would harm be reasonably foreseeable by the man in the street-bourhill v. Young 1943
Sufficient proximity of relationship-d must have caused direct harm bourhill again - motorcycle crash / miscarriage
That it is fair,just and reasonable to impose duty-

Question 5

Omissions re duty of care

Answer 5

You do not owe a duty to the world - do not have to act , stovin v wise 1996 , council not fixed bank
Some people have obligation- parent/child, teacher/pupil,lifeguards
Duty to look after prisoners on release-home office v Dorset yacht co 1970
Carmarthenshire cc v Lewis 1955 - Larry swerve to avoid child

Question 6

Duty of care - may take action not liable unless you make it worse

Answer 6

East Suffolk rivers catchment board v Kent 1941

Question 7

Breach of duty :

Answer 7

Breach If d fails to come up to the standard of a reasonable person test set out in Blythe v Birmingham waterworks 1856 - objective two stage test

1) court first assess how d ought to have behaved in circumstances what standard of care d should have exercised - question of law
2) court decides if d conduct fell below required standard - question of fact.

Question 8

Assessing if d fell below standards of reasonable person

Magnitude of risk - greater / even greater

Answer 8

Greater Likelihood =more care - Bolton v stone 1951 - hit by cricket ball precautions taking and unusual
Miller v. Jackson - same as above but more frequent so liable
Greater Seriousness - Paris v Stepney borough council 1951 - man already blind hit in other eye - should have had goggles

Question 9

Breach of duty - following elements to take account of

Answer 9

Magnitude of risk
Cost and practicality of precautions 
D purpose 
Common practice
Current state of knowledge
Limitations of reasonable

Question 10

Assessing if d fell below standards of reasonable person

Cost and practicality of precautions

Answer 10

If cost of taking precautions low should have done but if high for little reduction in risk - reasonable to do nothing - Latimer v aec 1953

Question 11

Assessing if d fell below standards of reasonable person

D’s purpose

Answer 11

If behaviour in public interest less likely to be liable - fireman rescuing

Question 12

Assessing if d fell below standards of reasonable person

Common practice

Answer 12

If processes are common practice less liable, however, do no forget herald of free enterprise

Question 13

Assessing if d fell below standards of reasonable person

Current state of knowledge

Answer 13

Whether risk of injury is foreseeable must be judges in light of knowledge available at the of act - Roy v minister of health 1954 -cracked vials

Question 14

Assessing if d fell below standards of reasonable person

Limitations of reasonable

Answer 14

Duty of care is only what is reasonable

Question 15

Duty of care - special standards

Answer 15

Skilled defendant - doctor = standard of reasonable doctor bolam v Friern hospital management committee 1957 - supported. Body of reasonable body of professional opinion not liable
Under skilled defendant - no allowance - wilsher v Essex area health authority 1987 / inexperienced junior doctor
Children - child judged against child of similar age - Mullins v Richards 1998

Question 16

Proof - negligence

Answer 16

It is the job of c to prove d had duty of care , breached duty and breach caused the loss
Balance of probabilities
Res ipsa loquitur - doctrine that the thing speaks for itself

Question 17

Causation - definition and case

Answer 17

But for the defendants breach of duty, would the harm to the claimant have occurred
Barnett v Chelsea and Kensington hospital management committee 1969 - doctor breached but death would have happened anyway

Question 18

Causation - novus actus interveniens

Answer 18

Act of third party cases unforeseeable further injury breaking chain of causation especially if negligent knightley v johns and ors 1982

Question 19

Remoteness in negligence

Answer 19

Overseas tankship (uk) ltd v morts dock and engineering co ltd, the wagon mound (no 1) 1961
The wagon mound test 1961
If a reasonable person would not have foreseen the damage it cannot be recovered
Apart from
The similar. In type rule - provided type of injury is reasonably foreseeable it not necessary to foresee how it happened
The egg shell skull rule - take your victims as you find them

Question 20

Negligence - defences

Answer 20

Consent - c had full knowledge of nature and extent of risk and accepted it - Morris v Murray 1991 
Illegality - Pitts v hunt 1990 
Lawful arrest 
Defence of person
Defence of property
Necessity 
Contributory negligence
Exclusion notices - UCTA - s1 negligence widely defined to include and occupiers liability act 1957

Question 21

Negligence defence - contributory negligence common and statute

Answer 21

Only partial defence
Carelessness on c behalf
Seat belts - froom v butcher 1976
Claimant failed to take reasonable care which contributed to loss of c
Law reform (contributory negligence) act 1945
Causation - c must have caused contributed
Must be foreseeable
Children - unlikely
Rescuers - only if unreasonable disregard for own safety