Negligence EVALUATION Flashcards
Explain
Negligence was defined in Donoghue v Stevenson as D breaching a duty of care and
causing damage.
Robinson shows if a duty has been owed in a similar situation before, a duty should also be
applied in the current case. In novel situations, Caparo v Dickman created a three part test
for duty. Is the harm reasonably foreseeable to the reasonable person? Was there proximity
between the claimant (C) and defendant (D)? This can be proven through physical time and
space or a relationship of dependency/ knowledge of the situation. And finally, is it fair, just, and reasonable to impose a duty? Secondly, Blyth v BW defines breach as falling below the standard of care expected of a reasonable person. Nettleship v Weston shows
inexperience does not alter the standard of care, where age and profession can lower or
raise it respectively (Mullin v Richards/Bolam). To decide if the standard is met, the court
can look at risk factors such as the size of the risk and any precautions taken. For instance,
the large size of risk in Miller v Jackson means the reasonable person would have taken
more precautions. Whereas in Latimer v AEC, D had taken precautions that were
proportionate to the size and seriousness of the risk.
To cause damage, D must pass the but for test for factual causation (Barnett) and there
must not be any intervening acts (like in Reeves v MPC). Additionally, the damage must not be too remote, meaning the type of damage caused is reasonably foreseeable (Wagon Mound). However, how the harm happens (Hughes v Lord Advocate) and the extent of it (Smith v Leech Brain) is irrelevant. This also means D must take C as he finds them (the egg shell skull rule), so D is liable even if C is particularly weak, provided the type of harm caused was reasonably foreseeable
Duty of care
Robinson shows that duty of care should usually be decided based on previous precedents, unless it’s a novel case. On the one hand, this creates a lot of certainty because similar cases will be decided in similar ways, which creates fairness and makes it easy for lawyers and citizens to work out if a duty is owed. However, one can argue that this may ignore the individual facts of these situations and create rigidity, meaning justice may not be served to claimants and/or defendants. Arguably though, this rule is effective in modern times because there will be a great many past precedents to draw from usually
The egg shell skull rule
The egg shell skull rule can also be viewed as effective. This is because D will be liable for
the full extent of damage even if they do not know C is particularly vulnerable. This creates
justice for C, who can sue when D causes them serious injury rather than being ‘blamed’ for
being more vulnerable. However, it could also be argued as unfair for D to be liable for
unforeseeable injuries that they otherwise might have prepared for. For instance, getting
cancer was not foreseeable in Leech Brain, and D may have provided better precautions
had they known of this risk. Therefore this rule isn’t necessarily effective in all situations
Standard of care is objective
The fact that inexperience will not change the standard care expected is effective, but also
problematic. This is because in cases like Nettleship v Weston, it holds D to a standard that they cannot possibly meet which is very unfair – common sense would suggest we expect less of those with less experience. However, this rule can be defended on the grounds of certainty; the test is an objective one and so all defendants will be held to the same standard which allows parties to know where they stand. Additionally, it ensures high standards are maintained rather than allowing inexperience to excuse injuries caused by negligence. Overall, this rule is effective at maintaining high standards of care, but not necessarily creating justice
Negligence is based on fault
One way to argue negligence is effective is that it is based on fault - ie D must have done
something wrong (breach) and caused foreseeable damage to be liable. This is fair on D as they would not deserve to be sued if the situation was essentially an unforeseeable accident. This also rewards D for taking good precautions, which incentivises high standards of care. However, this means that C is not guaranteed compensation if they are affected by D’s conduct, which may be unfair on C if they are also not to blame for the incident. It may also only encourage D to take ‘enough’ precautions to escape liability, rather than all possible ones in a stricter system. A stricter one is more effective at raising standards of car, but the current system of fault is more effective at creating justice overall
