Negligence Flashcards
Negligence - definition
Whether one persons act, or failure to act gives rise to legal claim for the loss or injury suffered by another person
Negligence - requirements
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
Establish Duty of care
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:
Caparo test :
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-
Omissions re duty of care
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
Duty of care - may take action not liable unless you make it worse
East Suffolk rivers catchment board v Kent 1941
Breach of duty :
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.
Assessing if d fell below standards of reasonable person
Magnitude of risk - greater / even greater
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
Breach of duty - following elements to take account of
Magnitude of risk Cost and practicality of precautions D purpose Common practice Current state of knowledge Limitations of reasonable
Assessing if d fell below standards of reasonable person
Cost and practicality of precautions
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
Assessing if d fell below standards of reasonable person
D’s purpose
If behaviour in public interest less likely to be liable - fireman rescuing
Assessing if d fell below standards of reasonable person
Common practice
If processes are common practice less liable, however, do no forget herald of free enterprise
Assessing if d fell below standards of reasonable person
Current state of knowledge
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
Assessing if d fell below standards of reasonable person
Limitations of reasonable
Duty of care is only what is reasonable
Duty of care - special standards
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
