Negligence Flashcards
Negligence created by and what it means (identify in scenario)
Negligence comes from Donoghue v Stevenson and is when D breaches a duty of care causing damage
Case showing duty of care is found by looking if similar cases owed a duty
Robinson
When do you use caparo test (cases)
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
3 elements of caparo test
- Would a reasonable person forsee a risk of damage from what D had done? (Not specific, any damage) objective
- Is there proximity between D and C? (Physical or relationship or knowledge of a situation)
- Is it fair, just and reasonable to impose duty on D?
Test for breach
D does not do what the reasonable man would do or does not do what the reasonable man would not do
Case for general test for breach
Blythe v BWW
Standard of care effects
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
If you pass the caparo test …
You do owe a duty (Jolley v Sutton)
If you don’t pass the test, you do not owe a duty (Bourhill v Young)
Size of risk
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)
Seriousness of potential harm
Reasonable man will take more
precaution when potential harm could be serious
Paris v SBC
Practicability of precautions
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)
Benefits of taking a risk
The reasonable man will take a risk if the potential benefit to be gained outweighs the risk
Watt v HCC
Factual causation case
Barnett
If damage is not too remote
That is good for the prosecution
Test for remoteness
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)
Contributory negligence
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
You can argue the full defence of volenti if
C knew precise risk involved
C is able to exercise free choice
C voluntarily assumed the risk
Volenti (C knew the precise risk involved)
C knows the nature of risk
Stermer v Lawson
Volenti (C is able to exercise free choice)
Unable to make free choice (Smith v Baker) part of job
Unable to make free choice (Ogwo v Taylor) duty of care
Volenti (C voluntarily assumed the risk)
Clue is going against instructions ICI v Shatwell
3 elements of negligence
- D owed duty of care
- D breached that duty of care
- D’s breach caused C’s damage (which was not too remote)
Risk factors
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
Eval Robinson
✅ certain- same duty in similar cases
❎ rigid- may have same relationship as past case but very different circumstances they can’t take into account
Eval Nettleship v Weston
✅ 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)
Eval Egg Shell Skull Rule
✅ 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
Eval fault based not strict liability
✅ 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
