Negligence Flashcards
Duty of care
Establish a legal relationship between the parties
Robinson 2018
Older lady sued police force even though it is hard to sue
statute based
If a law states a duty is owed
precedent
Donoghue v Stephenson
Donoghue v Stephenson
lady found a snail in her drink, couldn’t sue since she didn’t buy it
Caparo three part test
- reasonably foreseeable
- proximity
- fair, just and reasonable
Caparo v Dickman
Caparo wished to take over a company and relied on wrongly prepared accounts by Dickman, couldn’t sue as they had not been prepared
reasonably foreseeable harm
would a reasonable person in D’s position have foreseen that the C might be injured or suffer damage to their property
proximity (& case)
a duty of care will only exist if the relationship between C and Dis close enough(Bourhill v Young)
Bourhill v young
young crashed his motorcycle in tragic accident, Bourhill later saw a bit of blood after the clean up, went into shock and had a still born. failed the claim
fair, just and reasonable (& case)
impose a duty of public authorities because it my lead to defence working and be counterproductive (Hill v Chief constable of west Yorkshire police)
hill v chief constable of west Yorkshire police
criticised for not finding the Yorkshire ripper fast enough, wasn’t fair to place blame on the police for not finding him quick enough
breach of duty
the standard is set by the reasonable man
reasonable characteristics of D
- professional
- learner
- child
Professional
person/expert with special skills or training they are expected to reach the standards of an ordinary competent professional in that role
Bolam v Friern Barnet Hospital
c was suffering from mental illness and given treatment, not informed the risked and suffered broken pelvis, doctor had not breached his duty as he reached standards of ordinary competent doctor
learners
they are expected to reach the standard of the ordinary competent qualified person
nettleship v weston
a learner drier is expected to meet the same standard as a reasonable qualified competent driver
children
they are expected to reach the standard of a reasonable person of the D’s age at the time of the accident
risk factors (5)
- vulnerable victim
- size of risk
- practical precautions
- public benefit of raking the risk
- knowledge of the danger
vulnerable victim
if special characteristics such as illness or disability of the C are known to the D
size of the risk
smaller risks are fine, bigger risks are dangerous
practical precautions
the courts will balance the risk involve against the cost/effort of taking practical precautions
public benefit of taking the risk
if there is an emergency and the benefits outweigh the risk
knowledge of the danger
if the risk of harm/danger is not known there is no liability
causation
- factual
- legal
- think skull rule
factual causation
defined by “But for” test
legal causation
an intervening act can break the chain of causation, only when foreseeable
thin skull rule
d must take the c as they find them, if the type of injury is foreseeable but due to the c pre-existing condition this is made worse, the d will still be liable for the damage caused
remoteness of damage
d will only be liable for injury or damage that is reasonable foreseeable
defences
- contributory negligence
- consent
contributory negligence
if c suffers damage partly through their own actions, contributory negligence may be used by the d to reduce damages
consent
the c voluntary exposed themselves to a risk of harm
