Negligence including General Defences

Question 1

What 3 things must be proved in a negligence case?

Answer 1

D owed C a duty of care
D breached that duty of care
D’s breach caused the damage to C which was not too remote

Question 2

What does Robinson v CCoWY say?

Answer 2

If a duty has been owed in a similar situation before, a duty should also be applied in this case.

Question 3

When do you need to use Caparo v Dickman?

Answer 3

If a scenario is a novel or new situation.

Question 4

What is the Caparo test?

Answer 4

-Would the reasonable person foresee a risk of damage from what D has done?

-Is there a proximity/ closeness (closeness of time and space or closeness through a relationship of knowledge or dependency) between D and C?

-Is it fair, just and reasonable to impose a duty on D?

Question 5

What does Blyth v Birmingham Waterworks define a breach of duty as?

Answer 5

D has fallen below the standard of care expected of a reasonable person doing the same activity.

Question 6

What doesn’t lower the standard of care expected and which case shows this?

Answer 6

Inexperience. In Nettleship v Weston, D, a learner driver, was compared to the average competent driver even though she was a learner driver.

Question 7

Which case said that profession or expertise raises the standard of care?

Answer 7

Bolam v Friern Barnet HMC. D was compared to the reasonable doctor.

Question 8

What are the situations in which D would be compared to a professional?

Answer 8

-D actually has the skills/ expertise of a professional.

-D is acting in a way where they would be expected to be a professional (even if they don’t actually have the expertise).

Question 9

What was the case where D was not compared to a professional because they weren’t a professional and weren’t expected to be one?

Answer 9

Wells v Cooper. D was compared to a reasonable person doing DIY.

Question 10

Which case said that age lowers the standard of care and what is the standard lowered to?

Answer 10

Mullin v Richards. D will be compared to reasonable children of the same age.

Question 11

What are the 4 risk factors that help determine if D has reached the standard of care expected of them?

Answer 11

-Size of risk
-Seriousness of potential harm
-Practicability of precautions
-Benefits of taking a risk

Question 12

How does size of risk affect the likelihood that D breached their duty of care?

Answer 12

It looks at how likely is harm to happen. If the risk of harm is small, the reasonable person would take less precautions and so it is less likely D has breached the duty of care. If the risk of harm is high, the reasonable person would take more precautions and so it is more likely D has breached the duty of care.

Question 13

Which cases would you use for size of risk?

Answer 13

-Bolton v Stone (1951)- The reasonable man will take less precautions against a small risk of harm.

-Miller v Jackson (1977)- The reasonable man will take more precautions if the risk of harm happening is high.

Question 14

How does seriousness of potential harm affect the likelihood that D breached their duty of care?

Answer 14

It looks at how bad harm could be if it happened. The reasonable person would take more precautions if the potential harm to C could be serious and so D is more likely to have breached their duty of care.

Question 15

Which case would you use for seriousness of potential harm?

Answer 15

Paris v SBC (1951)- The reasonable man would take more care when the potential harm to C could be serious.

Question 16

How does practicability of precautions affect the likelihood that D breached their duty of care?

Answer 16

It looks at how cheap, easy and quick it was to take precautions to reduce the risk of harm. If it would have been cheap, easy and quick then D is more likely to be in breach as the reasonable person would have taken them.

Question 17

Which cases would you use for practicability of precautions?

Answer 17

-Paris v SBC (1951)- It would have been cheap,easy and practical for D to use Precautions.

-Haley v LEB (1965)- The precaution has to be practical

-Latimer v AEC (1952)- The reasonable man would take precautions that are proportionate to size of risk and seriousness of potential harm.

Question 18

How does potential benefits of taking a risk affect the likelihood that D breached their duty of care?

Answer 18

If the benefit outweighs the risk of harm to the claimant there is no breach. The reasonable person would take the risk if the potential benefit outweighs the risk.

Question 19

Which case would you use for potential benefits of taking a risk?

Answer 19

Watt v HCC (1954)- The reasonable man will take a risk if the potential benefit to be gained outweighs the risk.

Question 20

What 2 things must be proven for damage?

Answer 20

• D’s breach caused the damage to C
• The damage was not too remote

Question 21

Which case would you use for factual causation (but for test)?

Answer 21

Barnett v Chelsea & Kensington Hospital Management Committee (1969)
‘The damage would not have occurred but for the D’s breach of duty’

Question 22

Which case would you use for legal causation for V’s own actions?

Answer 22

Act of Victim (Reeves v MPC (1999))

Question 23

Which case would you use for legal causation for actions of a third party?

Answer 23

Act of third party (Wilkin-Shaw v Fuller (2013))

Question 24

Which case says that the type of damage must be reasonably foreseeable when deciding if the damage was too remote?

Answer 24

The type of damage must be foreseeable (The Wagon Mound (1961))

Question 25

Which case says that how the harm was caused does not have to be reasonably foreseeable when deciding if the damage was too remote?

Answer 25

How the damage happened can be unforeseeable (Hughes v Lord Advocate (1964))

Question 26

Which case says that the extent of harm does not have to be reasonably foreseeable when deciding if the damage was too remote?

Answer 26

The Extent (seriousness) of the harm can be unforeseeable (Bradford v Robinson Rentals (1967))

Question 27

Which case shows the thin skull rule?

Answer 27

Thin skull rule (If the C suffers more damage due to a weakness/vulnerability the damage will not be too remote) - Smith v Leech Brain & Co Ltd (1961)

Question 28

What does the Law Reform (Contributory Negligence) Act 1945 say?

Answer 28

That damages awarded to the claimant can be reduced depending on the extent to which the claimant contributed to his own injury. Therefore it is a partial defence because while it reduces the amount of damages, it does not stop D being liable.

Question 29

Which case would you use for contributory negligence and what does it say?

Answer 29

Sayers v Harlow(1958)- The court reduced damages because C played a part in causing the injury

Question 30

Is D still liable if volenti applies?

Answer 30

No

Question 31

What are the 3 elements to volenti?

Answer 31

-C knew the precise risk involved in the situation
-C was able to exercise free choice
-`C voluntarily accepted the risk

Question 32

What does the first element of volenti mean? (C knows the precise risk involved)

Answer 32

C knows the nature of the actual risk. It is not if C knew there was a risk, C must know the nature of the exact risk. It also doesn’t matter what the claimant or reasonable person should have known, it is what C actually knew so it is subjective.

Question 33

Which case said that C must know the specific risk involved in volenti?

Answer 33

Stermer v Lawson (1977)- C must not know there is a general risk, he must know that there is a risk of what happened, actually happening.

Question 34

What does the second element of volenti mean? (C was able to exercise free choice)

Answer 34

If C was forced into doing something through pressure, duress or obligation then they haven’t exercised free choice.

Question 35

Which cases would you use for the second element of volenti?

Answer 35

Smith v Baker (1891)- Where C is forced into accepting the risk, he has not exercised free will.

Ogwo v Taylor (1987)- C has a duty to act, they are forced to act and cannot exercise free choice.

Question 36

What does the third element of volenti mean and how is it different to the second? (Voluntary acceptance of risk)

Answer 36

Voluntary acceptance is where C chooses to take the risk anyway.
Exercising free will is where C could have chosen to avoid the risk.

Question 37

Which case would you use for the third element of volenti?

Answer 37

ICI v Shatwell (1965)- D voluntarily accepted the risk.

Question 38

What is Eval Point no1?

Answer 38

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 that justice may not always be served to claimants and/or defendants.

Question 39

What is Eval point no2?

Answer 39

Nettleship v Weston shows inexperience does not lower the standard of care. This can be very unfair because it expects D to meet a standard that is higher than common sense would dictate. However, this rule creates certainty because all defendants will be held to the same objective standard, which also ensures high standards are maintained because inexperience will not be an
excuse.

Question 40

What is eval point no3?

Answer 40

The Egg shell skull means D is responsible for all damage, even if they didn’t know of C’s weakness. This creates certainty as D can always be sued in these cases and ensures justice for C who will never be blamed for being particularly weak. It also encourages D to take precautions to cover all eventualities. However, this could be unfair on D because they cannot take precautions against a weakness they do not know about, and conditions such as the cancer in Smith v Leech Brain can be very unforeseeable. This rigid rule may therefore create injustice.

Question 41

What is eval point no4?

Answer 41

Negligence 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.

Question 42

Which case created negligence?

Answer 42

Donoghue v Stevenson