Negligence Flashcards
Duty of Care
A legal concept which dictates the circumstances which one will be liable to another in negligence.
Situations where a duty is established:
Road users to others Employer to employee Manufacturer to consumer Doctor to patient Solicitor to client
The Neighbour principle
“(Who is the neighbour) The persons who are so closely and directly affected by my actions, that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts/omissions called in question”
Donoghue v Stevenson
Test for establishing a duty
Must be;
(1) Reasonable foresight of harm
(2) Sufficient proximity
(3) Fair just and reasonable to impose a duty
Caparo
Foresight:
Avoiding acts which can potentially injure neighbour. Palsgraf v Long Island Railroad shows that this doesn’t open up a duty to everyone.
Proximity:
People closely and directly affected by my actions that wield a, “measure of control and responsibility over the potentially dangerous situation”.
Sutrahadar v National Environment Research Council
Fair, Just and Reasonable
Considers public policy arguments.
WBA v Medhat El-Safty
Standard of care:
Conditions which ordinarily regulate the conduct of human affairs.
Blyth v Birmingham Waterworks
Special Standards of care:
Skilled/unskilled defendants
Children
Sporting events
Seriousness of injury
Unskilled defendants:
Standard of care the same, regardless of inexperience.
Nettleship v Weston
Children:
Held to the same standards as children of same age.
Mullin v Richard
Sporting events
Spectators may be held to lower standards.
Wooldridge v Sumner
Seriousness of injury
If the defendant acknowledges risk of serious injury, standard of care is raised.
Paris v Stepney Borough Council
When can the burden of proof on the claimant be eased?
(1) Re ipsa loquitor
(2) S11 Civil Evidence Act 1968
Re ipsa loquitor
The thing speaks for itself
3 requirements for Re ipsa loquitor
(1) Cause of damage is under defendant’s control (2) Cause of accident is unknown (3) Accident would not have occurred if not for negligence
Causation
Breach of duty must be the factual cause of damage.
But-for test
“If the damage would not have occurred but for a particular fault, then that fault is the cause”
Cork v Kirby
Novus Actus Intervenus
A new intervening act may break the chain of causation.
Novus Actus Intervenus can be:
Third party act
Claimant’s act
Act of nature
Third part acts
Jobling v Associated Dairies
Claimant’s acts
Where the claimant is responsible for own damage,
McKew v Holland
Acts of nature
Must be unforeseeable and separate from primary acts.
Remoteness
Asks to what extent a defendant’s damage is attributable to
the claimant.
The remoteness test:
The kind/type of damage sustained is immaterial and it must be directly traceable to the negligent act.
Re Polemis and Furness applied a reasonable foreseeability test.
