Negligence

Question 1

Negligence created by and what it means (identify in scenario)

Answer 1

Negligence comes from Donoghue v Stevenson and is when D breaches a duty of care causing damage

Question 2

Case showing duty of care is found by looking if similar cases owed a duty

Answer 2

Robinson

Question 3

When do you use caparo test (cases)

Answer 3

If the case is novel or unique
(Jolley v Sutton) pass the test- does owe a duty
(Bourhill v Young) fails the test- does not owe a duty

Question 4

3 elements of caparo test

Answer 4

1. Would a reasonable person forsee a risk of damage from what D had done? (Not specific, any damage) objective
2. Is there proximity between D and C? (Physical or relationship or knowledge of a situation)
3. Is it fair, just and reasonable to impose duty on D?

Question 5

Test for breach

Answer 5

D does not do what the reasonable man would do or does not do what the reasonable man would not do

Question 6

Case for general test for breach

Answer 6

Blythe v BWW

Question 7

Standard of care effects

Answer 7

Inexperience (Nettleship v Weston) does not lower standard of care
Profession (Bolam) have skills or acting in situation you’d expect to have skills can higher standard of care
Effect of age (Mulin v Richards) compared to someone of same age

Question 8

If you pass the caparo test …

Answer 8

You do owe a duty (Jolley v Sutton)

If you don’t pass the test, you do not owe a duty (Bourhill v Young)

Question 9

Size of risk

Answer 9

The reasonable man will take less precaution against small risk of harm (Bolton)
The reasonable man will take more precautions against big risk of harm (Miller v Jackson)

Question 10

Seriousness of potential harm

Answer 10

Reasonable man will take more
precaution when potential harm could be serious
Paris v SBC

Question 11

Practicability of precautions

Answer 11

How practical was it (easy/cheap/quick) to take precautions to reduce risk of harm?
Paris v SBC (no precaution)
Haley v LEB (not enough precaution that would be easy)
Latimer v AEC (no breach, taken enough precaution)

Question 12

Benefits of taking a risk

Answer 12

The reasonable man will take a risk if the potential benefit to be gained outweighs the risk
Watt v HCC

Question 13

Factual causation case

Answer 13

Barnett

Question 14

If damage is not too remote

Answer 14

That is good for the prosecution

Question 15

Test for remoteness

Answer 15

Type of damage must be reasonable foreseeable (The Wagon Mound)
How damage happens doesn’t matter (Hughes v Lord Advocate)
Extent of damage doesn’t matter (Bradford v RR)
If C has weakness this does not effect remoteness- egg shell skull rule (Smith v Leech Brain)

Question 16

Contributory negligence

Answer 16

The law Reform (contributory negligence) Act 1945
Damages awarded to claimant can be reduced depending on extent to which the claimant contributed to his own injury
Sayers v Harlow VDC

Question 17

You can argue the full defence of volenti if

Answer 17

C knew precise risk involved
C is able to exercise free choice
C voluntarily assumed the risk

Question 18

Volenti (C knew the precise risk involved)

Answer 18

C knows the nature of risk

Stermer v Lawson

Question 19

Volenti (C is able to exercise free choice)

Answer 19

Unable to make free choice (Smith v Baker) part of job

Unable to make free choice (Ogwo v Taylor) duty of care

Question 20

Volenti (C voluntarily assumed the risk)

Answer 20

Clue is going against instructions ICI v Shatwell

Question 21

3 elements of negligence

Answer 21

1. D owed duty of care
2. D breached that duty of care
3. D’s breach caused C’s damage (which was not too remote)

Question 22

Risk factors

Answer 22

Take into account to see if standard of care has been met

• size of risk (probability)
• seriousness of harm (severity)
• practicability of precautions
• benefits of taking risk

Question 23

Eval Robinson

Answer 23

✅ certain- same duty in similar cases

❎ rigid- may have same relationship as past case but very different circumstances they can’t take into account

Question 24

Eval Nettleship v Weston

Answer 24

✅ certain- all parties same standard 
✅ justice for C 
✅ high standards- no excuses 
❎ rigid- goes against common sense 
❎ injustice to D- absurd (held to impossible standard)

Question 25

Eval Egg Shell Skull Rule

Answer 25

✅ certain D will be responsible
✅ justice to C- not blamed for own vulnerability
✅ encourages high precaution to prevent damage
❎ unfair to D- liable for unforseeable consequence

Question 26

Eval fault based not strict liability

Answer 26

✅ fair on D- can’t be sued unforseeable accident
✅ rewarded for taking precaution
❎ unfair on C- not guaranteed compensation (no certainty)
❎ doesn’t enforce strict precaution strict liability would avoid