Negligence I: Duty, Breach & Damage Flashcards
From which case does the neighbour principle come from?
Donoghue v Stevenson
How has the test for finding a duty of care developed?
- Anns v Merton LBC created a two stage test which asked was harm forseeable as to bring the claimant within the neighbourhood principle? If yes, was there any good policy reason to deny the existence of the duty?
- NOTE, this test received much judicial scrutiny, foreseeability is not enough alone, there must be proximity between the two
- Confirmed in Marc Rich & Co that foreseeability alone is insufficient to create a duty
- Caparo v Dickman then established the three stage test for confirming a duty of care
What is the Caparo test?
- Proximity
- Obvious risk of harm / foreseeability
- Is it fair, just and reasonable to impose a duty
- For proximity, the person must not be one of an indeterminate class of persons, **Goodwill **, the test is ultimately a factual one based on case
- HOWEVER, this does not mean that we should we try to find duties in all cases. If there is an analogous situation, then rely on that case authority
What does Robinson v Chief Constable of West Yorkshire Police tell us about the duty of care?
The ordinary principles of negligence apply to public authorities, no special immunity for the police
What does Poole BC v CG tell us about public authorities?
Public authorities do not owe a duty of care at common law merely because they have statutory duties or powers
When will a person be said to have ‘assumed responsibility’?
- Hedley Byrne, possibility of negligence for negligent mistatements when a defendant voluntarily assumes responsibility for the accuracy of a statement made to the claimant
What does Bolton v Stone tell us about the standard of care required?
- Likelihood of harm must be taken into account, the greater the risk the greater the need for precaution to be taken
- Remote possibility of injury is not enough, there must be sufficient probability that it would occur
What does the The Wagon Mound No2 say in relation to a risk?
Where the person was aware of an incident and ought to have known of the risk, and did not take steps to prevent this when such steps presented no difficulty or expense they will be seen as being negligent
Why was the standard of care different in Paris v Stepney Borough Council?
D had fallen below the standard of care by not providing protection to someone with a greater injury risk (this would be taken into account against the reasonable man)
How does the law treat learner drivers, children and professionals?
- Nettleship v Weston- no change for learner drivers
- Mullin v Richards- lower standard of care for children
- Bolam- No negligence if a doctor / professional acts in a way accepted as proper by a responsible body of individuals in that career (extended in Bolitho to say practice accepted must be based on logical and defensible grounds)
How has the Bolam test subsequently developed and changed?
Montgomery v Lanarkshire Health Board, where the issue is not one of medical expertise and knowledge the patient should be free to choose what form of treatment, if any, to undergo
What is the rule for adults with mental impairments?
Dunnage v Randall & UK Insurance, not considered in the standard of care unless the person has not acted at all
What is recoverable as damage in negligence?
- Hunter v Canary Wharf, must be damage in the sense of a physical change in property
- Rothwell v Chemical & Insulating, psychiatric illness can be recoverable but with certain restrictions
What is the test to find whether the defendant has caused injury?
The ‘but for’ test
Who is the burden of proof on in proving an act caused the injury?
Wilsher v Essex Health Authority, burden of proof is on the claimant to prove the act has caused injury on the balance of probabilities
What was the question of causation in Bonnington?
Whether the thing materially contributed to injury, this meaning more than minimal
What is the rule with scientific uncertainty?
Fairchild v Glenhaven Funeral Services, where there is scientific uncertainty there should be a relaxation of the but for test
Liable if there was a material increase in risk of injury
How should damage be decided in cases where the Fairchild exception applies?
Damages for each defendant are limited in proportion to their risk contributed
Barker v Corus Plc
How has the case of Holmes v Poeton Holdings Ltd developed the test for material contribution?
- Material contribution can apply to indivisble injury cases
- The material contribution test, because it is a causal process, allows us to establish causation without the but for test
What is the law on loss of chance?
Loss of chance is not recoverable in negligence
Gregg v Scott
What is meant by remoteness?
D will not be liable where the injury is too remote (i.e. too far removed) from their original act
What was decided in The Wagon Mound No1?
D was not liable because they could not have reasonably foreseen the damage occurring due to fire as a result of spilling oil
What does Hughes v Lord Advocate tell us about remoteness?
It does not matter if the sequence of events that happen are unusual, what matters is if the type of injury is foreseeable or not
What is the thin skull rule?
A particular weakness of the victim that an ordinary person would not have cannot be used as a defence to negligence even if it means injury was not reasonably foreseeable
Smith v Leech Brain & Co
What does Page v Smith tell us about reasonable foreseeability?
It does not matter for a primary victim if psychiatric injury was reasonably foreseeable or not so long as the risk of physical injury is foreseeable
What is the SAAMCO Principle?
If an adviser is instructed by a client to advise whether to enter into a transaction and is negligent in doing so, the client is entitled to recover all losses from this HOWEVER if an adviser is simply providing information that is used alongside other things, they are only liable for loss from this information if it was incorrect
What does the Social Action, Heroism and Responsibility Act 2015 tell us?
That when considering a claim for negligence, the court must consider whether the person was fulfilling one of the criteria and consider this in the standard of care
