Negligence

Question 1

What is normal negligence?

Answer 1

When Ct sues Dt for NEGLIGENTLY causing physical injury or property damage

Question 2

Is death a physical injury?

Answer 2

Yes.

Question 3

What is a dead body?

Answer 3

A property.

Question 4

4 elements to proof negligence?

Answer 4

Duty of care, Breach, Causation, Remoteness

Question 5

What are the 2 types of duty of care?

Answer 5

Legal & Moral

Question 6

What is legal duty of care?

Answer 6

Dt owes Ct a duty of care recognized by the court hence Ct can sue Dt

Question 7

What is moral duty of care?

Answer 7

Dt owes Ct a duty of care that is not recognized by law hence Ct cannot sue Dt

Question 8

Neighbourhood principle:

Donoghue v Stevenson

Answer 8

Ct: Mrs. Donoghue
Dt: Beer manufacturer

1. Ct was given a bottle of ginger beer manufactured by Dt from a friend
2. Ct suffered physical and psychiatric illness after drinking the beer as she saw a decomposing snail fall out of bottle while pouring
3. Mrs. Donoghue sued Mr. Stevenson for negligence

Decision: Duty of care was owed to Ct.
She was compensated for the negligence on Dt’s side

Question 9

What is neighbourhood principle?

Answer 9

Action of Dt CLOSELY & DIRECTLY affects Ct

Question 10

Lord Atkinson on neighbourhood principle

Answer 10

A duty was owed to ‘persons who are so closely
and directly affected by my act that I ought reasonably to have them in contemplation as being as affected…’. They are ‘my neighbours’.

Question 11

When to use Caparo test

Answer 11

Where Ct INDIRECTLY affected by Dt

Question 12

Threefold test:

Caparo v Dickman

Answer 12

Ct: Caparo Industries
Dt: Auditors

1. Caparo Industries, after referring to Fidelity plc’s account which stated a before tax profit of 1.3M, bought shares in Fidelity.
2. In fact, Fidelity had made a loss of over 400,000.
3. Caparo sued Dickman for negligence
   Decision: No duty of care was owed to Ct
   Reason：insufficient proximity betw Caparo and Dickman

Question 13

What happened to the 2 stage test (anns test)?

Answer 13

It is no longer valid as it was overruled by Murphy v Brentwood District Council

Question 14

Why was there no duty of care owed to Ct in Caparo v Dickman?

Answer 14

Bcoz there wasn’t sufficient proximity betw Caparo and auditors as the auditors were working for Fidelity and not Caparo

Question 15

3 elements of Caparo test as suggested by Lord Bridge

Answer 15

I) It was REASONABLY FORESEEABLEthat Ct would be injured
II) There was SUFFICIENT PROXIMITY betw Ct and Dt
III) It was FAIR, JUST & REASONABLE to impose liability

Question 16

Explain reasonable foresight.(e1 of caparo test)

Answer 16

Ct has to prove that Dt must be able to foresee his own action will lead to injury according to what a ‘reasonable person’ in his shoes would have foreseen

Question 17

Reasonable foresight:

Dangley v Dray

Answer 17

Ct: Policeman
Dt: a thief

1. Policeman crashed his car while chasing after thief.
2. It was held that foreseeability can be fulfilled
3. Dt should have foreseen that by increasing his speed, the policeman would also increase his speed, hence increasing risk of injury

Question 18

Case law for neighbourhood principle

Answer 18

Donoghue v Stevenson

Question 19

Case law for Caparo test

Answer 19

Caparo v Dickman

Question 20

Case law for reasonable foresight in Caparo’s test

Answer 20

Dangley v Dray

Question 21

Case law for sufficient proximity in Caparo’s test

Answer 21

Watson v BBB

Question 22

Explain sufficient proximity.(e2 of caparo test)

Answer 22

Ct has to prove sufficient closeness of relationship with Dt

Question 23

Sufficient proximity:

Watson v BBB

Answer 23

Ct: Watson
Dt: BBB

1. Watson suffered brain damage in the ring.
2. His condition would have been better if offered medical attention immediately from ringside.

e1- reasonable foresight: FULFILLED(BBB can expect no medical attention would cause delay)
e2- sufficient proximity: FULFILLED(Boxer v organiser)

Question 24

Explain fair, just and reasonable.(e3 of caparo test)

Answer 24

public policy- generally acceptable

Where e1 and e2 was et, courts can deny if there is a sound public policy reason.

Question 25

What is the purpose of e3?

Answer 25

To prevent floodgate argument-huge quantities of similar case

Question 26

Case law for fair, just and reasonable in Caparo’s test

Answer 26

McFarlane vs Tayside Health Board

Question 27

Fair, just and reasonable:

Mcfarlane v Tayside Health Board

Answer 27

1. Ct became pregnant upon failure of partner’s vasectomy.
2. Ct tried to claim compensation for cost of bringing up the child from Dt.

Decision: The claim was denied due to public policy. It was not just and reasonable to award claim for the birth of a healthy baby.