Negligence Flashcards
What is normal negligence?
When Ct sues Dt for NEGLIGENTLY causing physical injury or property damage
Is death a physical injury?
Yes.
What is a dead body?
A property.
4 elements to proof negligence?
Duty of care, Breach, Causation, Remoteness
What are the 2 types of duty of care?
Legal & Moral
What is legal duty of care?
Dt owes Ct a duty of care recognized by the court hence Ct can sue Dt
What is moral duty of care?
Dt owes Ct a duty of care that is not recognized by law hence Ct cannot sue Dt
Neighbourhood principle:
Donoghue v Stevenson
Ct: Mrs. Donoghue
Dt: Beer manufacturer
- Ct was given a bottle of ginger beer manufactured by Dt from a friend
- Ct suffered physical and psychiatric illness after drinking the beer as she saw a decomposing snail fall out of bottle while pouring
- 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
What is neighbourhood principle?
Action of Dt CLOSELY & DIRECTLY affects Ct
Lord Atkinson on neighbourhood principle
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’.
When to use Caparo test
Where Ct INDIRECTLY affected by Dt
Threefold test:
Caparo v Dickman
Ct: Caparo Industries
Dt: Auditors
- Caparo Industries, after referring to Fidelity plc’s account which stated a before tax profit of 1.3M, bought shares in Fidelity.
- In fact, Fidelity had made a loss of over 400,000.
- Caparo sued Dickman for negligence
Decision: No duty of care was owed to Ct
Reason：insufficient proximity betw Caparo and Dickman
What happened to the 2 stage test (anns test)?
It is no longer valid as it was overruled by Murphy v Brentwood District Council
Why was there no duty of care owed to Ct in Caparo v Dickman?
Bcoz there wasn’t sufficient proximity betw Caparo and auditors as the auditors were working for Fidelity and not Caparo
3 elements of Caparo test as suggested by Lord Bridge
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
Explain reasonable foresight.(e1 of caparo test)
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
Reasonable foresight:
Dangley v Dray
Ct: Policeman
Dt: a thief
- Policeman crashed his car while chasing after thief.
- It was held that foreseeability can be fulfilled
- Dt should have foreseen that by increasing his speed, the policeman would also increase his speed, hence increasing risk of injury
Case law for neighbourhood principle
Donoghue v Stevenson
Case law for Caparo test
Caparo v Dickman
Case law for reasonable foresight in Caparo’s test
Dangley v Dray
Case law for sufficient proximity in Caparo’s test
Watson v BBB
Explain sufficient proximity.(e2 of caparo test)
Ct has to prove sufficient closeness of relationship with Dt
Sufficient proximity:
Watson v BBB
Ct: Watson
Dt: BBB
- Watson suffered brain damage in the ring.
- 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)
Explain fair, just and reasonable.(e3 of caparo test)
public policy- generally acceptable
Where e1 and e2 was et, courts can deny if there is a sound public policy reason.
What is the purpose of e3?
To prevent floodgate argument-huge quantities of similar case
Case law for fair, just and reasonable in Caparo’s test
McFarlane vs Tayside Health Board
Fair, just and reasonable:
Mcfarlane v Tayside Health Board
- Ct became pregnant upon failure of partner’s vasectomy.
- 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.
