Negligence AO1, evaluation Flashcards
Negligence
c must prove on the balance of probs: d owed him a DoC, d breached that DoC, and c’s damage was caused by d’s breach of duty and not too remote from it
Donoghue v Stevenson
DoC first def: Lord Atkin’s Neighbour Principle, “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
Robinson v Chief Constable of West Yorkshire
- following this case, we apply CRs
- 3 CR: usually FJR unless public policy reasons not to e.g protecting emergency services working in fear of being sued
Caparo v Dickman
3 part test applied but only in a “novel situation”
-damage rf, proximate relationship & fjr
Kent v Griffiths
1 CR: court will ask whether some damage was reasonably foreseeable
Bourhill v Young, McLoughlin v O’Brian
2 CR: court ask whether relationship between c and d was sufficiently proximate, either through time/space as in (this case)
Watson v British Board of Boxing Control
2 CR: or through a relationship of responsibility
Hill v Chief Constable of West Yorkshire
3 CR: court ask whether its FJR to impose a DoC between c and d
Blyth v Birmingham Waterworks
breach of duty means that d´s SoC falls below the standard expected of the reasonable man doing the same activity, as def by Baron Alderson
Bolam v Friern Barnet Hospital
obj test: d’s characteristics gen not considered, unless d is a prof they are compared to a r competent prof and there must be a responsible body of prof opinion to support their actions
Bolitho v Hackney
bolam test amended, prof supporting d must show a ‘logical basis’ for their view
Montgomery v Lanarkshire
est all healthcare profs must make patients aware of all material risks so patient can give informed consent to treatment
Nettleship v Weston
if d is a learner/trainee they are comp to a qualified person
Mullin v Richards
if d is a child they are comp to a child of the same age
Risk Factors
court will cons “RF’s” which may raise or lower the SoC`
-1) size of risk of harm, 2) special c’s, 3) public benefit, 4) cost & practicality
Bolton v Stone
1 RF: if size of risk of harm is high, SoC will be high
Paris v Stepney Borough Council
2 RF: specials c’s of c eg being vulnerable or having a serious potential injury will raise SoC
Watt v Hertfordshire County Council
3 RF: public benefit of the actvity may lower SoC
Latimer v AEC Ltd
4 RF: low level of cost & practicality of reducing the risk will lower SoC
Damage
2 parts: causation & remoteness
Barnett v Chelsea and Kensington HMC
FC: court apply “but for test” and ask whether damage would not have occurred but for d’s breach of duty
Jones v Boyce
LC: court cons whether a not rf NAI (IA) breaks chain of causation between d’s breach of duty and damage
The Wagon Mound (No1)
remoteness: d is liable for damage that was rf at time of breach of duty
Law Reform Contributory Negligence Act
defence of contributory negligence
Nettleship v Weston 2
defence of volenti non fit injuria
Damage Act 1996
remedy will be compensatory damages (gen & spec) to put c in pre-tort position
Checklist
- define
- DoC: neighbour p & caparo rules (RF, relationship & FJR)
- BoD: SoC test-prof/learner/child, risk f’s (size of risk, special c’s, public & cost)
- damage: FC & LC, remote (rf)
- defence & remedy
c must prove on the balance of probs: d owed him a DoC, d breached that DoC, and c’s damage was caused by d’s breach of duty and not too remote from it
Negligence
DoC first def: Lord Atkin’s Neighbour Principle, “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
Donoghue v Stevenson
- following this case, we apply CRs
- 3 CR: usually FJR unless public policy reasons not to e.g protecting emergency services working in fear of being sued
Robinson v Chief Constable of West Yorkshire
3 part test applied but only in a “novel situation”
-damage rf, proximate relationship & fjr
Caparo v Dickman
1 CR: court will ask whether some damage was reasonably foreseeable
Kent v Griffiths
2 CR: court ask whether relationship between c and d was sufficiently proximate, either through time/space as in (this case)
Bourhill v Young, McLoughlin v O’Brian
2 CR: or through a relationship of responsibility
Watson v British Board of Boxing Control
3 CR: court ask whether its FJR to impose a DoC between c and d
Hill v Chief Constable of West Yorkshire
breach of duty means that d´s SoC falls below the standard expected of the reasonable man doing the same activity, as def by Baron Alderson
Blyth v Birmingham Waterworks
obj test: d’s characteristics gen not considered, unless d is a prof they are compared to a r competent prof and there must be a responsible body of prof opinion to support their actions
Bolam v Friern Barnet Hospital
bolam test amended, prof supporting d must show a ‘logical basis’ for their view
Bolitho v Hackney
est all healthcare profs must make patients aware of all material risks so patient can give informed consent to treatment
Montgomery v Lanarkshire
if d is a learner/trainee they are comp to a qualified person
Nettleship v Weston
if d is a child they are comp to a child of the same age
Mullin v Richards
court will cons “RF’s” which may raise or lower the SoC`
-1) size of risk of harm, 2) special c’s, 3) public benefit, 4) cost & practicality
Risk Factors
1 RF: if size of risk of harm is high, SoC will be high
Bolton v Stone
2 RF: specials c’s of c eg being vulnerable or having a serious potential injury will raise SoC
Paris v Stepney Borough Council
3 RF: public benefit of the actvity may lower SoC
Watt v Hertfordshire County Council
4 RF: low level of cost & practicality of reducing the risk will lower SoC
Latimer v AEC Ltd
2 parts: causation & remoteness
Damage
FC: court apply “but for test” and ask whether damage would not have occurred but for d’s breach of duty
Barnett v Chelsea and Kensington HMC
LC: court cons whether a not rf NAI (IA) breaks chain of causation between d’s breach of duty and damage
Jones v Boyce
remoteness: d is liable for damage that was rf at time of breach of duty
The Wagon Mound (No1)
defence of contributory negligence
Law Reform Contributory Negligence Act
defence of volenti non fit injuria
Nettleship v Weston 2
remedy will be compensatory damages (gen & spec) to put c in pre-tort position
Damage Act 1996
- define
- DoC: neighbour p & caparo rules (RF, relationship & FJR)
- BoD: SoC test-prof/learner/child, risk f’s (size of risk, special c’s, public & cost)
- damage: FC & LC, remote (rf)
- defence & remedy
Checklist
EVAL: strengths
- judicial precedent (high Q & improved) e.g DoC & DvS’32->CvD’90->RvCCWY’18
- public benefit, prev injuries & compensate (DvS(NP), BvBW)
EVAL: x effective
- unfair c has to prove & court disadvantages
- judicial precedent: just AoP (CNA’45), case law inconsistent
EVAL: overall
difficult to prove- cost/delay/confront however growing ADR and useful reforms (RvCCWY)
