Negligence - All Flashcards
Intro - who defined negligence
Baron Alderson
Intro - what did Baron Alderson say
” Failing to do something which the reasonable person would do or something the reasonable person wouldn’t do”
Intro - what can negligence be
Act or omission
Intro - what does negligence protect against CHECK OVER
Intro - what must claimant prove
That the defendent was negligent through balance of probabilities.
Intro - negligence test
- D owe doc
- C prove breach of duty
- Ds actions caused reasonably foreseeable damage
Doc - case
Robinson v chief constable of West Yorkshire police 2018
Doc - what did Robinson v cheif constable of West Yorkshire police hold
If there’s an established relationship between claimant and defendent then fair just and reasonable to apply an established doc
Doc - all 6 duties
- Volunteer
- Statutory (RTA 1988)
- Limit harm caused
- Relationship
- Public Office
- Contractual
Doc - Ao3 CHECK OVER
P - SC decide novel cases, courts need exercise judgement that involves consideration of what’s fair, just and reasonable
DP- Positive-individualised-increase access to Justice, fair trial
WDP - Inconsistencies - subjective -each judge different
Breach- what test is this
Objective
Breach- objective, meaning…
It judges to the standard of ordinary and reasonable person performing the same task
Breach- General case
Vaughan v menlove
Breach- 3 categories
Professional
Learner
Yound people & children
Breach- (professional) how are they judged?
Judged to standard of profession as a whole
Breach- (professional) case (1)
Bolam v fiern Barnet hmc
Breach- (professional) Bolam v doesn’t Barnet hmc established what
- Fallen below standard of ordinary competent member of profession
- Substantial body opinion within profession that wouldn’t support actions taken by D
Breach- (professional) case (2)
Montgomery v Lanarkshire health board 2015
Breach- (professional) what did Montgomery v Lanarkshire health board establish
That doctors have to disclose any serious issues in child birth
If you accept the risk - face the consequences
Breach- (professional) AO3
P - follow Montgomery - if risk manifests - doesn’t mean doctors cannot be liable. If doctor negligent and was the reason risk was brought about = liable
DP - ensure C protected, if risks, doctors ensure greater care
WDP - Montgomery decision changed way doctors were tried. However unclear whether changes in law or whether judges trying to provide clarity in case regarding childbirth
Breach- (learners) how are they judged
Judged to standard of competent and more experienced person
Breach- (learners)case
Nettleham v weston
Breach- (learners) nettleship v weston held
Meet same standards as reasonable qualified competent driver
Breach- (learners) AO3
P - fair, encourage greater standard of care whilst driving - even though learning
DP- good that we have standard test. Easy to apply. Everyone finishes learning at different times, therfore, fair to hold all to same standard- consistant
WDP - c never out of pocket - insurance - ensure d compensated
VWDP - however, unfair, deter from learning, fear of being sued
Breach- (child) judged by?
Judged to the standard of reasonable person of D’s age at the tome of incident
Breach- (child) the way they’re judged was established by the case…
Mulling v Richards
Breach- (child) case (2)
Orchard v lee
Breach- (child) orchard v Lee held
Only liable if playing together in a way a normal 13 wouldn’t
Risk factors- all 5
- Special characteristics
- Size of risk
- Appropriate precautions
- Risks known?
- Benefit to risk?
Risk factors- (special characteristics) case
Paris v Stephen Borough Council (bod, duty owed, blind in one eye)
Risk factors- (special characteristics) AO3
P- encourage employers to have greater suty for employees
DP- goddles nit needed for everyone but should have recognised that the cost and efforts of providing goggles was small compared to consequences of loss of sight
WDP- judicial creativity - whats a special characteristic?
Risk factors- (size) small
Not expected great precautions
Bolton v stone
Risk factors- (size) high
Greater doc
Haley v London electricity board
Risk factors- (appropriate precautions) case
Latimer v AEC Ltd- no breach, no duty to close factory
Risk factors- (risks known) case
Roe v minister of health - no breach, risk not reasonably foreseeable, unknown at time
Risk factors- (risks known AO3)
P - no compensation- unfair
DP- not given access to justice, constant care due to severity of injuries, costly if cant afford it
WDP- however no amount of money placed on loss of living independently
Risk factors- (benefit to risk?) case
Emergency, lower standard of car accepted
Day v high performance sports
Damage - CIF test
But for
Damage - CIF case
Barnett v Chelsea Kensington HMC
Damage - CIF barnett v Chelsea Kensington hmc held
Hospital not liable, but for doctors examination, he would have died regardless
Damage - CIL test
Not too remote, reasonably foreseeable (wagon mound No1)
Damage - CIL case (1)
Bradford v Robinson rentals
Rf, not too remote, employer liable
Damage- CIL case (2)
Doughty v Turner asbestos
Too remote not RF that explosion would occur
Damage - NAI
Break chain of causation
Act of claimant/ nature / third party
Damage - eggshell
D take v as he finds him - pre existing condition
Damage - AO3
P- only difference between cases was Bradford aas RF and doughty was not RF
DP- led to 1 c getting compensation and not the other- even though both resulted in injury
WDP- deny c access to justice. Rules on remoteness of damage unfair on some claimants as ds liability limited
Defence- 2 types
- contributory negligence
- Consent
Defence- contributory negligence
Partial defence
Reduction of damages
When c contributed to their own harm
Defence- consent
Full defence
No damages
1. Full knowledge of risk
2. C exercised free choice
3. C voluntarily accepted risk
Remedies- all 5
- Compensatory damages
- Pecuniary losses
- Non Pecuniary losses
- General damages
- Special damages
Remedies- compensatory damages
Put c back in position before tort
Remedies- pecuniary losses
Calculated in terms of money
Remedies- non pecuniary losses
Not wholly money based - not quantifiable
Remedies- general damages
Look forward from date of trial
Remedies- special damages
Calculated up to date trial
Conclusion
P- although straight forward, c prove 3 elements of test create anxieties
DP- result in stress being added to c , especially if they can’t afford legal representation. Feel bullied if opposition had representation
WDP- However ADR private process, no publicity, attractive to businesses involved in dispute as court hearing negative impact future negotiations. Also date and time more flexible alongside type of hearing = cut down costs for C
Reform
A state- run benefit (like canada) pay compensation to victim of accident without ability to prove why accident happened. Funded through general taxation.
