Negligence Flashcards
What 3 things must be proven for D to be found liable for negligence?
- D owed C a duty of care
- D breached that duty of care
- D’s breach caused D’s damage, which was not too remote
What is negligence?
Where a property or person is damaged as a result of an accident.
What case was negligence originally created?
Donoghue v Stevenson
What did Robinson v CCoWY say?
The Supreme Court said that if there is an existing ruling, then the court should follow that decision, if not, in ‘novel’ situations, that the court must consider if D owed a duty of care to C.
I.e. if a duty of care has already been proven in a previous case, follow that decision, if not, the court must consider if D owes a duty of care.
What are the 3 parts to the Caparo test
- Would the reasonable person foresee a risk of damage from what D has done? - could the harm that the claimant suffered be anticipated or expected.
- Is there proximity (a connection) between D and C?
This can either be through physical closeness (being in the same place at the same time), or through a relationship (either where C was in a relationship of dependency with D, or D had knowledge of C’s situation). - Is it fair, just, and reasonable to impose a duty on D?
This is presumed to be the case unless there are good reasons D shouldn’t be liable
What case was the Caparo test made in?
Caparo v Dickman
What are the two case examples of the Caparo test being used?
Jolley v Sutton - Caparo test was made out
Bourhill v Young - Caparo test wasn’t made out
What case defined what a breach was?
Blyth v Birmingham Waterworks Co. defined a breach as something where D does not do something the average person would, or D does something the average person wouldn’t.
Alternatively, breach means that the defendant has fallen below the standard of care expected of a reasonable person performing the activity concerned.
What factor was deemed irrelevant when determining the standard of care?
Inexperience - Nettleship v Weston
What 2 factors can affect the standard of care expected?
- Professionalism - Professionals will be held to a higher standard of care due to their extra training and expertise.
- Age - Age can lead to the standard of care being lowered due to their lack of knowledge.
What case is relevant to professionalism raising the standard of care expected?
Bolam v Friern Barnet HMC said:
There are 2 situations where D will be compared to a professional:
1. D actually has the skills/expertise of a professional
2. D is acting in a way in which they would be expected to be a professional (even if they don’t actually have the expertise).
What case is relevant to age lowering the standard of care expected?
Mullin v Richards
What are the 4 risk factors?
- Size of risk
- Seriousness of potential harm
- Practicability of precautions
- Benefits of taking a risk
What is Size of RIsk?
How likely it is that harm to the C will happen.
Bolton v Stone gave the legal principle of the reasonable man will take less precautions against a small risk of harm.
Miller v Jackson gave the principle of if the risk of harm happening is high, then the reasonable man would take more care/precautions.
What is Seriousness of (potential) Harm?
How bad could harm be to the C
Paris v SBC gave the principle of the reasonable man will take more care when the potential harm to C could be serious.
What is Practicability of Precautions?
How practical (easy, quick, cheap) was it to take precautions to reduce the risk of harm.
Paris v SBC - It would have been very easy for D to take precautions.
Haley v LEB - D left insufficient precautions. D only needs to take easy/cheap/quick precautions.
Latimer v AEC - The reasonable man will take precautions which are proportionate to the size of risk and seriousness of potential harm.
What is Potential Benefits of Taking a Risk?
Is the benefit going to outweigh the risk.
Watt v HCC - The reasonable man will take a risk if the potential benefit to be gained outweighs the risk.
What must C prove about damage?
- Defendant’s breach caused the damage to the claimant.
2. That the damage caused was not too ‘remote’ a result of the breach.
Discuss Causation for Damage
Factual Causation:
Barnett v Chelsea Kensington Hospital Management Committee - But for test
Intervening Acts:
Reeves v MPC - Acts of the victim did not break the chain
Wilkin-Shaw v Fulker - Acts of a third party did break the chain
What does damage being ‘too remote’ mean?
The type of damage is reasonably foreseeable. How the harm was caused and the type of damage can be unforeseeable.
What case is used for the type of damage being reasonably foreseeable?
The Wagon Mound - oil spillage caused damage which was foreseeable, the fire damage was not.
What case is used for how the harm is cause being unforeseeable?
Hughes v Lord Advocate - burns were foreseeable, but how the burn was caused does not matter.
What case is used for how the extent of harm can be unforeseeable?
Bradford v Robinson Rentals - extent of harm doesn’t matter, only the type of harm.
What rule did the Eggshell Skull Rule come from?
Smith v Leech Brain - C’s pre-cancerous condition made him more vulnerable, D must take his V as he finds them.
What are the 2 defences of negligence?
Contributory Negligence
Volenti
Discuss Contributory Negligence?
The Law Reform (Contributory Negligence) Act 1945 - Damages awarded to C can be reduced depending on the extent to which C contributed to their own injury.
Sayers v Harlow UDC
Discuss Volenti?
A full defence meaning D is no longer liable.
There are 3 elements to the defence:
1. C knows the precise risk involved in the situation - meaning C know the nature of the risk - Stermer v Lawson - C must know there is a general risk.
2. C was able to exercise free choice - Smith v Baker - Where C is forced into accepting the risk, he has not exercised free choice. - Ogwo v Taylor - Where C has a duty to act, they are forced to act and cannot exercise free choice.
3. C voluntarily accepted the risk - meaning going against instructions is usually a sign that someone has freely accepted the risk. - ICI v Shatwell - C chose to ignore instructions and voluntarily accepted risk.
