Negligence Flashcards
What case is negligence defined by?
Blyth
Defined in Blyth ‘…’
‘failing to do something the reasonable person would do, or doing something they would not do’
D has
D has fallen below standard
Different types of standard
1.
2.
3.
- Professional standard. A doctor will be compared to an ordinary reasonable doctor
- Learners standard. Held to the standard of competent, experienced person
- Children + young persons. Held to the standard of their age.
What test is applied?
3 Part Caparo Test. D owes a duty of care
Parts of the test include…
1.
- Damage/injury is reasonably foreseeable
Parts of the test include…
2.
- Proximate relationship.Meaning D should have c in contemplation
Parts of the test include…
3.
It must be reasonable and just to impose a duty of care onto D
Montgomery
C had complications when giving birth. It meant that her child was born with cerebral palsy. A normal doctor would have warned of this risk. D did not and therefore fell below the standard of their profession.
Mullin
2 school girls play fighting with rulers. Ruler snapped and blinded c. Held that D should be held to the standard of a 15 year old school girl and not an adult, therefore not negligent
Nettleship
Learner crashed while in driving lesson. Instructor was injured. D was held liable as they are compared to competent driver
Donaghue
Decomposing snail in drink. The company should have anyone who is directly or closely affected in contemplation
Test to determine the duty has been breached
Blyth Test
-
- Breach has caused damage, that isn’t too remote, meaning it needs to be closely related or as a result of negligence.
- Risk factors
ie. ..
- Special characteristics
- High or low risk
- Ease of avoidance
WagonMound
Boat spilled oil into the harbour. Damage from Oil was reasonably foreseeable. BUT the fire at welding site was NOT reasonably foreseeable. Meaning the damage was too remote.
Risk factors
- Special Characteristics
- High or low risk
- Cost or ease of avoidance
Factual causation
‘But for test’
Barnett
Cs husband went into A&E only to be turned away by doctors. Cs husband was poisoned with arsenic and would have died anyway. Therefore the doctor was not negligent.
Legal causation
Any intervening acts. Egg-shell rule
Defences =
Contributory Negligence, Volenti/consent
Remedies =
Compensation
State The Law
Defined in Blyth ‘Failing to do something the reasonable person would, or doing something they would NOT do.
D has fallen below standard.
Of a professional, Montgomery
A child is judged on their age, Mullin
A learner is compared to the experienced, Nettle ship
3 Part Caparo Test where D owes a duty of care
1. Damage/Injury is reasonable foreseeable
2. Proximate relationship. Should D have c in contemplation, Donoghue
3. Must be reasonable, and just to impose a duty of care
Blyth Test Where the duty has been breached
- Breach caused damage, that isn’t remote Wagonmound
- Risk factors, Special characteristics, High or low risk, ease of avoidance
Factual causation = ‘But for test’ Barnett
Legal causation = Intervening acts, egg shell rule
Defences = Contributory neg, Volenti/consent Remedies = Compensation
