*NEGLIGENCE: DUTY OF CARE AND BREACH OF DUTY* Flashcards
Define negligence
- a breach of a legal duty of care owed to the claimant which results in harm to the claimant, undesired by the defendant
What are the three limbs of negligence?
- duty of care (are they under a legal duty to take care of injured person)
- breach of duty (reasonable person test to determine if there is breach)
- causation (did the defendant cause the injury or were there any other factors?)
Name some established duties of care.
- one road users to another, including driver to driver, driver to passenger, driver to pedestrian, cyclist to driver, cyclist to pedestrian (Nettleship and Weston)
- doctor to patient
- employer to employee
- manufacturer to consumer
- tutor to tutee/ teacher patient
What are the three required factors for establishing duty of care in novel situations? Caparo Industries plc v Dickman [1990] test.
1) foreseeability of the risk to the claimant
2) proximity in relationship between C & D
3) is it fair just and reasonable to enforce the duty of care?
1 and 2 form The Neighbour Principle in Donoghue v Stevenson
What considerations might a court take into account when creating new duties of care?
1) floodgates argument
- so if one case succeeds then this invites other similar cases
2) deterrence of certain type of behaviour
- to prevent public from acting in ‘wrong way’
3) cost of compensation is high
4)public benefit
- does it increase public safety?
5) upholding the law
- may sometimes lead to unjust results but law has to be upheld otherwise it loses its power
What should you ask yourself to determine if there is a breach of duty?
1) has D fallen below reasonable standard of care here?
- can use Civil Evidence Act 1968 s11 to prove careless behaviour
- has D been convicted of criminal offence?
- has offence involved careless conduct?
If yes, this can help any claimant’s argument as they dont need to prove D’s careless behaviour
2) what degree of care was expected by D at time of incident?
- magnitude of risk (how likely was it that D’s actions would cause an injury? How serious was it likely to be?) Bolton v Stone
- cost of practicality of precaution (if risk of injury could’ve been significantly reduced at low cost to D then D acted unreasonably - great expense will not excuse D if they risk of injury is huge) Latimer v AEC Ltd 1953
- public interest (if D’s behaviour is in publics interest then D is less likely to be held liable in negligence)
- common practice (D can escape liability if they show their behaviour is line with common practice in their field)
Explain the reasonable person test. Are there any special exceptions for some specific people?
- what would the ordinary person have done and foreseen
- objective test
Special standards:
- D holds particular skill e.g doctor
- D is child in which case reasonable person is person of same age
- where D is disabled
BREACH OF DUTY
What does ‘res ipsa loquiter’ mean?
- the matter speaks for itself
- this is used in special cases where no detailed evidence is needed
- mere nature of accident is sufficient to imply negligence
List three conditions needed to apply maxim ‘res ipsa loquiter’
1) thing causing damage must be under control of D
2) accident would not normally occur without negligence
3) cause of accident is unknown to C e.g C has no direct evidence if failure by by D to exercise reasonable care
General rule for liability for omission to act?
- no liability for omission to act
- Stoven v Wise 1996
Exceptions to the general rule of liability of omission to act?
- a special relationship of control between the two people e.g lifeguard and swimmer
- employer and employee
- one may need to take positive action to safeguard other
- Home Office v Dorset Yacht Co Ltd
What duty is owed if you decide to act though you are not under a duty to act?
- you will not be liable in negligence even if you act carelessly
- UNLESS you make matters worse
- East Suffolk Rivers Catchment board v Kent and another 1940
