Negligence Case Analysis Flashcards
What is the Neighbour principle and who was it created by?
Created by Lord Atkin
Says that “you must take reasonable care to avoid acts or omissions which you can reasonably forsee with injure your neighbour”
Definition of negligence is?
A species of tort which is the failure of behaving with the level of care a reasonable person would in the same context.
A type of tort where there is NO CONTRACT between the parties
Essence of Negligence is about a lack of care/attention to giving harm.
Common law is about… (3 things)
Stability
Consistency
Predictability
Negligence cases in order are?
- Donoghue v Stevenson
- Grant v Australian Knitting Mills
- Herschtal v Stewart & Adern
- Bourhill v Young + Palsgraf v Railroad
- Bolton v Stone
- Miller v Jackson
- Russel v McCabe
- Home Office v Dorset Yacht Co
What are the ‘planks’ of negligence?
- Duty of care?
- Duty of care breached?
- Did the breach of duty cause the harm?
- Does anything reduce defendants liability?
Egg Shell Skull rule + case to use for it
If you injure someone else you are liable for the full extent of the damage, even if they have a susceptibility already.
Grant - if he had a susceptibility to an external irritant.
Contributionary Negligence
If the injured party themselves did something that contributed to the harm or loss, then the compensation can be reduced accordingly.
Codified in the Contributionary Negligence Act 1947
Res ispa loquitor
The facts speak for themselves.
Volenti non fit injuria
No harm is done to one who consents
Vicarious Liability
As well as seeking compensation from the person who caused the harm, you can also seek it from their employer
= more money.
Only if they were acting within their employmetn at the time
Novus Actus
A new act or omission from someone else that occurs after the negligence breaking the chain of causation.
What are the only things the defence can argue for negligence?
Causation: could argue harm would happen anyway
Break in chain of causation: something happened which contributed to the cause
Contributionary negligence: plaintiff is partly responsible
Volenti non fit injuria: no harm is done to one who consents - unjustified intervention
Key points of Donoghue v Stevenson
DOC:
Neighbour principle
Reasonable possibility of intermediate examination - no possibility because the bottle was opaque and the manufacturer was aware of this
Breach:
Duty of care is to take reasonable care, not all possible care. Just need to do what the reasonable person would in that scenario.
Causation:
Vicarious liability - can also seek compensation from the wrongdooers employer as long as they were acting within their employment at the time of wrongdoing.
Key points of Grant V Australian
DOC:
Expands neighbour principle to food + drink - interprets it broadly instead of narrowly.
Inspection was possible but not detectable - cannot see chemicals with the blind eye
Damage does not = negligence
BREACH:
Egg shell skull rule
CAUSATION:
Coincidence is not enough, there must be a temporal connection.
Contributionary negligence - should he have stopped wearing undies, even as medical professional.
Key points of Herschtal v Stewart & Adern
DOC:
Extends neighbour principle relationship to other occupations like engineer
It was possible for the plaintiff to examine the car and the fault would have been visible to the eye, but the court found that it was not reasonable to expect this
- It was inspectable and detectable but unreasonable
Have to reasonably expect the plaintiff to inspect the thing before use
BREACH:
CAUSATION:
Key points of Bourhill v Young & Palsgraf v Railroad
DOC:
Unforeseeable plaintiffs
Defendant could not have reasonably anticipated that these plaintiffs would be effected by their actions - the harm was not forseaable.
A duty of care is not owed to the world at large, it is only owed to those who can be put in reasonable contemplation due to a proximate relationship
Key points of Bolton v Stone
DOC:
Physcial proximity can establish a duty of care
BREACH:
It was possible for the ball to hit someone, not PROBABLE - a fluke.
The mere possibilty of it happening was not enough for there to be a breach - negligence is only found it there is more than a remote chance that the harm would occur - risk is a part of life and remote possibility is not enough
CAUSATION:
Key points of Miller v Jackson
DOC:
Physical proximity is enough to establish a duty of care
BREACH:
Good contrast to Bolton
Distinguished from Bolton v Stone because probable not possible
CAUSATION:
Key points of Russel v McCabe
DOC:
BREACH:
CAUSATION:
Intervention was reasonable - doing a duty. So no Volenti non fit injuria
In cases like these: need to consider if the defendant was the best person to deal with the danger - in this case, a firefighter was.
Key points of Home Office v Dorset Yacht Co
DOC:
Physcial proximity can be enough for a DOC to be present
BREACH:
CAUSATION:
Extended the neighbour principle - can also be through employer - vicarious liability.
It was foreseable the boys would use the only means of escape. Their neglect of duty led to the damage.
The borstal officers ought to have seen it likely they would try to escape via the only means of doing so and this could lead to damage - chain of causation not broken
Introduction for answer if asked about remedies and prospects of success prosecuting someone….
I am advising….on….
The legal remedies which…may have are….(damages?)
To get these remedies….will have to show that….(list elements of tort)
However, there could be a defence of….
The effect of this would be…
Causation
Did the defendants actions CAUSE the harm or loss
- Could it have happened anyway?
Policy considerations to filter in argument - from Buckmaster & Dilhorne
Expansion of tort would have chilling consequences to businesses
Floodgates
Policy considerations to filter in argument - from Atkin & Reid
Common sense that the law would provide a remedy in this circumstnace
The law is about ordinary citizens and this duty meets the needs of ordinary citizens
Structure for negligence answer
- Intro: Who advising, remedies available, what they need to satisfy to get the remedies
- Does … owe …. a duty of care?
Is the plaintiff the defendants “neighbour”
Is there any reasonable possibility of intermediate examination?
Was there any warning? - Did the defendant breach the duty of care?
What standard of care should be taken in the context? Did they do what the reasonable person would have done?
Was the harm foreseeable? - Did this breach cause the damage?
Any contributionary negligence?
Volenti?
Vicarious liability?
Novus Actus? - Conclusion: Conclude on what advising
What cases can you use for the “duty of care?” issue section
Donoghue v Stevenson - neighbour principle, manufacterer, food + drink, no possibility of intermediate examination
Grant v Australian knitting mills - products (not just food + drink)
Herschtal v Stewart - not just manufacterers, possibility/ expectation of examination breaks the duty of care
Bolton, Miller, Dorset - Physcial proximity
OR Bourhill and Palsgraf - unforseeable plaintiff (no duty of care)
Warning breaks duty of care - Kubach
What cases can you use for the “breach” issue section
Donoghue - “reasonable care”, not all possible care
Bolton - possible, not forseable
Miller - probable, forseeable
What cases can you use for the “causation” issue section?
Russel v McCabe - volenti
Dorset - Vicarious liability, Novus
Grant - contributionary negligence
What things could go under element 1: DOC?
Neighbour principle
Unforeseeable plaintiffs
Reasonable possibility of intermediate examination?
- Breaks the proximate relationship
For DOC, if none of the cases fit what can you say…
Can say that the development of the law since D v S shows that establishing a duty of care does not require the present case to fit into the old ones, instead, it just has to fit into the spirit of Lord Atkins contemplation idea - neighbour principle
