Negligence

Question 1

BOP

Answer 1

The burden of proof is on C to provide evidence. If C has no evidence then the claim will fail.

Question 2

OBOP

Answer 2

It will be judged on the Balance of Probabilities. It needs to be decided that it is 51% likely to have happened.

Question 3

Negligence is defined in …

Answer 3

Blyth ‘failing to do something the reasonable person would or would not do ‘

Question 4

What 3 tests are applied?

Answer 4

1. The objective Test
2. Three part Caparo test
3. The Blyth test

Question 5

The objective Test

Answer 5

D is compared to the ordinary, reasonable person performing that task.
> Professionals are held to the standard of their profession. Montgomery
> A child is judged by their age. They are not compared to an adult. Mullins
> A learner is compared to the experienced driver. Nettleship

Question 6

Montgomory

Answer 6

A doctor didn’t warn pregnant woman of birth risks.

Question 7

Mullins

Answer 7

A school girl playing with ruler and blinded classmate. 14 year old was compared to the ordinary 14 year old

Question 8

Nettleship

Answer 8

A learner crashed the car and injured the instructor.

Question 9

The … part … Test

Answer 9

Three Part Caparo Test

Determines if there is a duty of care between the Claimant and Defendant

Question 10

3 parts

Answer 10

1. Was the damage or injury reasonably foreseeable.
2. Is the relationship between the claimant and defendant proximate? Where D should have C in contemplation. Donaghue
3. It is fair, reasonable, and just to impose a duty of care onto D?

Question 11

Donaghue

Answer 11

Decomposing snail in drink. Company should have C in contemplation.

Question 12

The last Test

Answer 12

The Blyth test is used to determine if there has been a breach in the duty of care.

Question 13

The Blyth Test

Answer 13

1. The breach has caused damage that isn’t too remote. Where the damage is likely from Ds negligence.
2. The risk factors are considered
   > Special characteristics
   >High or low risk
   >Ease/cost of avoidance

Question 14

Causation

Answer 14

Factual causation applies the ‘but for Test’
Legal causation asks is it fair to blame D? C doesnt need to prove Ds breach was the main cause of injury/damage. Only that it materially contributed to the injury/damage.

Question 15

Barnett

Answer 15

posion

Question 16

State the law

Answer 16

The burden of proof is on C. C must provide evidence of Ds negligence. Otherwise the claim will fail.
Judged on the balance of probabilities. It needs to be determined to be 51% likely.
Negligence is defined in Blyth, ‘failing to do something the reasonable person would or would not do.’
The objective test is applied. D is compared to the reasonable person performing the task.
> A professional is compared to their standard of profession. Montgomory.
>A learner is compared to the experienced person. Nettleship.
>A child is judged in comparison to their age. Mullin
3 Part Caparo Test is applied to determin is there is a duty of care between D and C.
1. Is the damage/injury reasonably foreseeable?
2. Is the relationship proximate? Should D have C in contemplation. Donaghue.
3. Is it fair, reasonable and just to impose a duty of care onto D?
The Blyth test is used to determine if this duty of care has been breached.
1. The breach has caused damage that isn’t too remote. Meaning it is likely a result from Ds negligence.
2. The risk factors are considered
- Special characteristics, such as sensitivities that C has that a normal person would not.
- Was the risk high or low?
- Ease/cost of avoidance
Factual causation applies the ‘but for’ test. Barnett
Legal causation asks is it fair to blame D? C doesn’t need to prove Ds breach was the main cause of injury/damage, just that it materially contributed to the injury/damage.