Negligence (look at the list of cases at the end of the duress PowerPoint in remote learning)

Question 1

What is Negligence P223

Answer 1

It was defined in Blyth V Birmingham Waterworks Co (1856) ‘failing to do something which the reasonable person would do or doing something the reasonable person would not do.’
An act or failure to act which causes injury or damage to another person or their propoerty.

Question 2

What are the stages of negligence W18P1

Answer 2

The defendant owed a duty of care - they have a responsibility not to cause harm.
The defendant breached the duty of care - their conduct fell below the expected standards.
The damage that was suffered was caused by the breach.
All three steps must be satisfied for there to be negligence.

Question 3

Duty of care definition W18P2

Answer 3

Is a responsibility from one person to another - this means that the defendant should have ensured the safety of the claimant.
In the case Robinson V CCWY (2018) it set the guidelines for when a duty of care will be found.

Question 4

What is the rule of duty of care W18P2

Answer 4

The three stages for DOC was set out in Robinson V CCWY (police knock into old women and owe DOC).
Sometimes a duty of care is automatically owed - when the SC or COA in an earlier case has decided that in this situation a DOC should be owed - sets a precedent which must be followed.
If a situation is similar to a pre established DOC but not exactly the same, the courts could argue that a DOC should be owed - for example if a childminder hurt a child through negligence this is similar by analogy to a parent.
If there is no pre-established DOC and no analogy can be found, you have to apply the three part test in Caparo V Dickman.
All parts of the test must be satisfied for there to be a DOC.

Question 5

Pre-established duty of care cases

Answer 5

Filler

Question 6

Robinson V CCWY (2018) W18P2 and the Negligence case stack which is likely either from the Negligence sheet or my notes

Answer 6

A women passer-by was injured as police attempted to arrest a drug dealer. Where the harm to the person is reasonably foreseeable then emergency services should owe a duty of care.
This applies if the victim is known to the police and it was an action of the police that lead to harm and not an omission.
This case also set the guidelines for when a duty of care will be found.

Question 7

Nettleship V Weston Sheet

Answer 7

Driving instructor injured when pupil crashed car. Held: driver has a duty to their passengers and all other road users as well.

Question 8

Barnett V Chelsea Sheet

Answer 8

Hospital turned away a man with unknown arsenic poisoning telling him to see his GP in the morning - he died overnight. They owed him a DOC and they breached this by failing to treat him. However, they weren’t liable as he was going to die anyway.

Question 9

R V Gibbons and Proctor Sheet

Answer 9

A criminal case but one that proves there is a DOC between parent and child. This is also contained in statute The Child and Young Persons Act 1933. A criminal case but one that proves there is a DOC between parent and child. This is also contained in statute The Child and Young Persons Act 1933.

Question 10

What is the Caparo test P224

Answer 10

The neighbour principle was used by judges until it was replaced by a three part test in Caparo V Dickman (1990):
Was damage of harm reasonably foreseeable?
Is there a sufficiently proximate (close) relationship between the claimant and the defendant?
Is it fair, just and reasonable to impose a duty?

Question 10

Caparo V Dickman (1990) P225

Answer 10

The claimant company wanted to take over another company, Fidelity Limited. They looked at the statutory accounts prepared for Fidelity by the defendant, which showed profit. Based on these books they decided to take over Fidelity. After completing the purchase they looked at the detailed books which showed a loss. They sued the defendant for their loss.
The HOL set a three stage test for owing a duty of care. They decided that the defendant did not owe the claimants a duty of care as the accounts were prepared for Fidelity and statutory reasons.

Question 11

Damage or reasonably foreseeable harm P225

Answer 11

Whether the injury or damage is reasonably foreseeable depends on the facts of the case. An example of this is Kent V Griffiths (2000).
An ambulance was called to take the claimant who was suffering an asthma attack to hospital. Despite repeated assurances by the control centre, and for no obvious reason, the ambulance failed to arrive within a reasonable time. As a result the claimant suffered a respiratory arrest.
The decided it was ‘reasonably foreseeable’ that the claimant would suffer further illness if the ambulance did not arrive promptly and no good reason was given why it failed to do so. A duty of care was owed by the ambulance service when they initially accepted the call and as they failed in this duty they were liable to pay compensation.

Question 12

Proximity of relationship P225 and previous stack of cards probably sheet.

Answer 12

Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship between the claimant and the defendant is sufficiently close or proximate.
An example of this is in the case Bourhill V Young (1943).
A pregnant women heard an accident as she got off a tram. The accident was caused by a motorcyclist who died in the accident. After a short while she approached the scene of the accident and saw blood on the road. She suffered such shock that she later gave birth to a stillborn baby. She sued the relatives of the dead motorcyclist. Under the neighbour test at the time she had to prove that she was close to the motorcyclist, so that he owed her a duty of care. The HOL decided that he could not anticipate that if he was involved in an accident, it would cause mental injury to a bystander and so he did not owe a duty of care.
It was dismissed because she was not in sufficient proximity to the accident in either space or time.

Question 13

Fair, just and reasonable to impose a duty P226

Answer 13

The courts are often reluctant to find that it’s fair, just and reasonable to impose a duty of care on public authorities such as the police.
This was shown in the case Hill V CCSY (1990).
A serial killer had been attacking and murdering women in Yorkshire and across the north of England. The claimants daughter was the last victim before he was caught. By the time of her death they already had enough info to arrest him, but failed to do so. The mother claimed that the police owned a duty of care to her daughter. The HOL decided that the relationship between the victim and the police was not sufficiently close. It’s not fair just and reasonable for the police to owe a duty of care to the public. The police knew that the killer might strike again but they had no way of knowing who the victim might be.

Question 14

Breach your duty of care definition W18P3

Answer 14

The standard is objective. The reasonable person is the ordinary person performing their task competently. You fell below the standards of behaviour expected by the law. The case Blythe V Birmingham Water Works defined breaching your duty of care as ‘breach is doing something the reasonable man wouldn’t do or not doing something he would do.

Question 15

Blythe V Birmingham Waterworks (1856) sheet

Answer 15

A water company followed standard practice, they didn’t expect harm to occur but it did after a heavy frost damaged pipes.
This defined breach ‘doing something the reasonable man wouldn’t do or not doing something the reasonable man would do. A water company followed standard practice, they didn’t expect harm to occur but it did after a heavy frost damaged pipes.
This defined breach ‘doing something the reasonable man wouldn’t do or not doing something the reasonable man would do.

Question 16

How do we judge the reasonable man W18P3 and P227

Answer 16

The reasonable man is expected to be ‘at least competent in his chosen activity’ - Wells V Cooper
If you are doing any activity by choice the law will require you to be at least competent. If you foresee someone being harmed then you could be liable even if it’s the very first time you do something.
There are a number of variations of the ‘reasonable person’ and the court may have to consider whether the defendant has a special characteristic, are they a profession?

Question 17

Wells V Cooper sheet

Answer 17

A man did poor quality DIY on his home and, someone visiting was injured. A reasonable man is expect to be at least competent in his chosen activity. A man did poor quality DIY on his home and, someone visiting was injured. A reasonable man is expect to be at least competent in his chosen activity.

Question 18

Variations in the reasonable man W18P3

Answer 18

Filler

Question 19

Learners W18P3, P228 and 229

Answer 19

Learners - all road users have an established duty of care to other road users. Nettleship V Weston - road users have DOC and no allowance for learners. Wells V Cooper must be at least competent in a given activity.
Learners are judged at the standard of the competent, more experienced person. It’s logical as it would be unfair on the injured if they couldn’t claim because they were a learner.

Question 20

Nettleship V Weston (1971) P228

Answer 20

Mrs Weston arranged with her neighbour, Mr Nettleship, for him to give her driving lessons. She was on her third lesson when with him and failed to straighten up after turning a corner. She drove into a lamppost which fell onto the car injuring Mr Nettleship. The court decided that Mrs Weston should be judged at the standard of the competent driver, not at the standard of an inexperienced driver.

Question 21

Professionals W18P3 and P228

Answer 21

A professional has skills that the average person doesn’t - so they are held to a higher standard of care. Professionals are judged by the standard of the profession as a whole. This was shown in the case Bolam V Friern.
The principle for Bolam’s case and which applies to all professionals is to ask the following questions:
Does the defendant’s conduct fall below the standard of the ordinary competent member of the profession?
Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant. If the first is no and second is yes then they haven’t broken their DOC.

Question 23

Bolam V Friern (1957) P228

Answer 23

The claimant was suffering from a mental illness and the treatment at the time was to receive a type of electric shock. He signed a consent form but was not told of the risk of broken bones while receiving the shocks and was not given relaxant drugs. he suffered a broken pelvis while receiving the treatment. There were two opinions in the medical profession while undertaking ECT. One favoured the use of relaxant drugs in every case and the other is that drugs should only be used where there is a reason to do so, which was not present in Bolam’s case. The court decided that the hospital had followed one of these courses of action, no breach of DOC.

Question 24

Children W18P3 and P229

Answer 24

Children don’t appreciate risk in the same way an adult might, this means they are held to a lower standard of care. For this group the standard is that of a reasonable person of the defendant’s age at the time of the accident. This was shown in the case Orchard V Lee.

Question 25

Orchard V Lee sheet

Answer 25

Two thirteen year olds were playing tag at school, one ran into a supervisor and caused her injuries.
No breach as they hadn’t fallen a considerable degree below the standards. Two thirteen year olds were playing tag at school, one ran into a supervisor and caused her injuries.
No breach as they hadn’t fallen a considerable degree below the standards.

Question 26

What are risk factors W18P3 and page 229

Answer 26

Once they have decided whether they acted reasonably, it will take into account certain factors to decide whether the standard of care should be raised or lowered. Would the reasonable person take more or fewer risks in the same situation?
Some will rise the standard - high risk of serious harm or a vulnerable claimant.
Some will lower the standard - where there is a clear social benefit in taking the risk.
Has the claimant got any special characteristics that should be taken account of?
This was shown in the case Paris V Stepney Borough Council (1951).

Question 27

Paris V Stepney Borough Council (1951) P229

Answer 27

Mr Paris was known to be blind in one eye. He was given work to so by his employers which involved a small risk of injury to the eyes. He was not given any protective googles. While doing this work his good eye was damaged by a small piece of metal and he became totally blind. His employers were held to have broken their duty of care to him.
They knew that the consequence of an injury to his good eye would be very serious. They should have provided him googles even though it was not necessary to provide googles to other workers. The cost and the effort of providing googles was small compared with the consequences of the risk.

Question 28

What is the size of the risk P229

Answer 28

Where a risk is small, the defendants will not have to take such a great precaution. This is shown in the case Bolton V Stone.
The principle that applies here is that the greater the risk of injury the greater the precaution needs to be to prevent the injury. The lower the risk the fewer precautions needed to be taken.

Question 29

Bolton V Stone (1951) P229

Answer 29

A cricket ball hit a lady passer-by in the street outside a cricket ground. The evidence was that there was a 17 foot high sentence around the ground and the wicket was a long way from the fence. There was also evidence that cricket balls had only been hit out the ground 6 times in 30 years before the accident. Because of the number of times balls had been hit out of the ground. It was found the cricket club had done everything it needed to do in view of the low risk and it had not breached their duty of care.

Question 30

Have all appropriate precautions been taken P230

Answer 30

The courts will consider the balance of the risk involved against the cost and effort of taking adequate precautions to eliminate the risk. This was shown in the case Latimer V AEC Ltd (1953).
It’s likely that if this happened today higher standards of health and safety would mean the owners would have to do more than spread sawdust.

Question 31

Latimer V AEC Ltd (1953) P230

Answer 31

A factory became flooded and, as the floor was very slippery with a mixture of water and oil, the workers were evacuated. Sawdust was spread over the floor of the most used areas to minimise the risk of slipping and the workers were required to go back in. Despite the spending of the sawdust one worker slipped and was injured. The court held there was no breach of the DOC. The factory owners had taken reasonably steps to reduce the risk of injury. There was no need to incur expense to eliminate every possible risk.

Question 32

Is there a public benefit to taking the risk P230

Answer 32

If there is an emergency than greater risks can be taken and a lower standard of care can be accepted. This is consistent with the third part of establishing a DOC (fair, just and reasonable). Courts take a realistic view of dealing with emergencies. They accept that in hindsight the situation could have been dealt with differently but accept that speed action is taken without hindsight. This was shown in the case Watt V Hertfordshire County Council 1954.

Question 33

Watt V Hertfordshire County Council (1954) P230

Answer 33

The claimant was a fire-fighter. There was a road accident a short way from the fire station and the fire station was called to release a women trapped underneath a lorry. A jack was needed to release the injured women but the normal vehicle for carrying the jack was not available. A flatbed truck was found but there was no way of securing the jack. The claimant was injured when the jack fell on him on the way to the accident. The court decided that the fire service had not breached their duty of care to the claimant because of the emergency situation and the fact that the utility of needing to save a life outweighed the need to take precautions.

Question 34

Were the risks known at the time of the accident P230

Answer 34

If the risk is not known there can be no breach. This was shown in the case Roe V Minister of Health (1954).

Question 35

Roe V Minister of Health (1954) P230

Answer 35

Anaesthetic was kept in glass tubes which were sterilised by cleaning solution after each use. At the time it was not known that invisible cracks could appear in the glass of the tubes which caused the anaesthetic to become contaminated by the cleaning solution. The claimant was paralysed by some contaminated anaesthetic. As the risk of the contamination was not known at the time, the court decided there was no breach and the claimant could not claim compensation.

Question 36

What is damage P231

Answer 36

There are two parts to damage: causation and remoteness of damage.
Causation is the idea that the breach caused the injury (factual causation). Causation decides whether the damage suffered was reasonably foreseeable.

Question 37

What is factual causation P232

Answer 37

Factual causation is the starting point. Factual causation is decided by the ‘but for’ test. But for the defendant’s act or omission the injury or damage would not have occurred. This is illustrated by the case Barnett V Chelsea (1969).

Question 38

Barnett V Chelsea P232

Answer 38

Three night watchmen went to an A&E department complaining of sickness after making tea made by a forth man. A nurse telephoned a doctor who did not come and examine the men but recommended they go home and see their own doctor. One of the men went home and died a few hours later of arsenic poisoning. His widow sued claiming that the doctor was negligent in not examining her husband and caused his death. However, evidence showed that by the time he went to hospital it was too late to save his life. The arsenic was already in his system in such quantity that he would have died no matter what. This meant the death was not caused by the doctors breach of duty of care and so the claim failed.

Question 39

Remoteness of damage P232

Answer 39

With legal causation just like in criminal cases there can be a Novus actus interveniens (an intervening act to break the chain of causation.
The damage must be too remote from the negligence of the defendant. This comes from the Australian case decided by the Privy Council The Wagon Mound (1961).

Question 40

The Wagon Mound (1961) P232

Answer 40

Fuel had been negligently spilled from the defendant’s ship into the water in Sydney harbour, which flowed towards the claimants wharf where welders were carrying out repairs to another ship. Two days later the oil caught fire because of the sparks from the welding. The fire spread to the claimant’s wharf and burnt it down.
It was described that, although damage done to the wharf by oiling being spilled was reasonably foreseeable. This type of damage was too remote from the original negligent act of spilling the oil. The test for remoteness from this case is it must be reasonably foreseeable.

Question 41

When are people still liable P233

Answer 41

The defendant will also be liable if the type of was reasonably foreseeable, even though the precise way it happened was not. This was illustrated in the case Hughes V Lord Advocate (1963).

Question 42

Hughes V Lord Advocate (1963) P233

Answer 42

Post Office workmen left a manhole unattended, covered only by a tent and with paraffin lamps by the hole. The claimant an eight year old boy and a friend climbed into the hole. As the boys climbed out they knocked one of the paraffin lamps into the hole. This caused an explosion which badly burnt the claimant. The defendants said the injuries were too remote.
The court decided that the boy was able to claim for his injuries as it was foreseeable that a child might explore the site, break the lamp and be burnt. The type of injury he suffered was foreseeable, even though the explosion itself was not foreseeable.

Question 43

Take your victim as you find them P233

Answer 43

If the type of injury or damage is foreseeable but it’s much more serious because the claimant had a persisting condition, then the defendant is liable for all the consequences. This is known as ‘the egg shell.’ This was shown in the case Smith V Leech Brain and Co (1962).

Question 44

Smith V Leech Brain and Co (1962) P234

Answer 44

Because of the defendant’s negligence, a man was burnt on the lip by molten metal in a factory. The man had an existing pre-cancerous condition. The burn eventually bought about the onset of full cancer and the man died. His widow claimed against the defendant. The court decided that the burn was reasonably foreseeable and because of the eggshell skull rule the defendant was liable for the man’s death.

Question 45

What is Res Ipsa Loquitur P235

Answer 45

The burden of proving negligence is on the claimant, on the balance of probabilities. In some situations it’s hard for the defendant to know exactly what happened, even though it seems obvious that the defendant must have been negligent. In these situations the rule of res ipsa loquitur. This means ‘the thing speaks for itself.’
The claimant has to show: the defendant was in control of the situation which caused the injury, the accident would not have happened unless someone was negligent and there is no other explanation for the injury. If the claimant can show this the burden of proof shifts to the defendant. An example of this is Scott V London and St Katherine Docks (1865).

Question 46

Scott V London and St Katherine Docks (1865) P235

Answer 46

The claimant was hit and injured by six heavy bags of sugar which fell from the defendant’s warehouse. He knew he was injured from the falling bags but he didn’t know why they fell.
The elements of res ipsa loquitur were present:
Fell from the warehouse which the defendant was in control of.
Heavy sacks do not fall unless someone is negligent and there was no clear explanation for the sacks to fall.

Question 47

The evaluation of liability in negligence is P235-239

Answer 47

Filler

Question 48

What are the defences to a Negligence claim P239

Answer 48

An allegation that the claimant as contributed to their injuries and or the claimant consented to a risk of harm.

Question 49

What is contributory negligence P239 and 240

Answer 49

The Law Reform (Contributory Negligence) Act 1945 provides that any damages to the claimant can be reduced to the extent they contributed to their own harm. The judge will set the full damages and then decide the percentage that the claimant is responsible and reduce the damages by that amount. This was shown in the case Froom V Butcher (1976).

Question 50

Froom V Butcher (1976) P240

Answer 50

The driver of a car suffered greater injuries than would have been the case if wearing a seat belt. His damages were reduced by 20%.

Question 51

Consent P240

Answer 51

Consent or volenti is a full defence when the claimant voluntarily accepts the risk of harm. If this is proven no damages will need to be paid. To succeed the defendant has to show:
Knowledge of the precise risk involved, exercise of free choice by the claimant and a voluntary acceptance of the risk.
This was shown in the case Stermer V Lawson (1977).

Question 52

Stermer V Lawson (1977) P240

Answer 52

Consent was argued when the claimant had borrowed the defendant’s motorbike. The defence failed because the claimant had not been properly shown how to use the motorbike and therefore did not appreciate the risks. There is no defence because the claimant knows of the existence of risk, they must have a full understanding of the nature of the actual risk.

Question 53

Restriction of the defence of consent P240 and 241

Answer 53

S.149 of the Road Traffic Act 1988, which says it cannot be used for road traffic accidents. This is because of third party insurance.
Other types of defence for consent can be seen on pages 240 and 241 with cases.

Question 54

Calculations of damages W19P2

Answer 54

Filler

Question 55

What are compensatory damages P258

Answer 55

In tort can be awarded to the claimant for injuries suffered or damages to property. The idea of damages is to put the claimant in the same position than if the tort had not been committed, only real possible for damages to property.

Question 56

What are pecuniary and non-pecuniary losses P258

Answer 56

Pecuniary loss is a loss that can be easily calculated in money terms, for example the cost of hiring a car while the claimants one is repaired.
Non-pecuniary loss is a loss that is not wholly money based, this includes things such as pain and suffering.

Question 57

How are damages calculated W19W2

Answer 57

Special damages, general damages, pain and suffering and loss of amenity.

Question 58

What are special damages P258

Answer 58

Can be calculated specifically up to the date of trial (pecuniary loss). This could be the cost of repairing a vehicle and any loss of earnings while recovering from the accident can also be claimed.

Question 59

General damages P258

Answer 59

Non-pecuniary losses and are looking forwards from the trial. This can be for things like pain and suffering, loss of amenity and future loss of earning. These are speculative and evidence will have to be shown to support the claim. Annual calculation of loss x the number of years.

Question 60

Future loss of earnings W19P2

Answer 60

This figure is complicated, the court decides annual lost wages x the number of years claimed - the court doesn’t give the lump sum as this would be unjustified profit - the claimant would get interest on the lump sum. If the claimant is a child the court decides their earning potential based on their parents. Cassell V Riverside Health Authority.

Question 61

Pain and suffering W19P2

Answer 61

This includes physical and mental pain such as stress and anxiety.

Question 62

Loss of amenity W19P2

Answer 62

This is compensation for things you can’t do as a result of the accident - the more you do before the accident the greater your claims for damages.

Question 63

How are damages awarded W19P2, P258 and 259

Answer 63

Lump sum - when there is a reward for pain and suffering and loss of amenity, they can only award a lump sum. This may be unfair for the claimant whose condition may get worse and inflation. However, it may be unfair for the defendant if the claimant’s condition improves so they no longer need to pay for care.
Interim payment - if the liability of the defendant is clear and the trial is mainly for calculating damages, then the defendant may have to give the claimant damages before the trial to help with loss of income.
The claimant also must mitigate his loss if possible, such as taking another job, getting a bus rather than a taxi for example.

Question 64

What is a structured settlement P259

Answer 64

To deal with this situation the Damages Act 1996 allowed for structured settlements. This allows the parties to agree that all or some of the damages are paid periodically. This can be made for a time period or life. The amount can be assessed at intervals the value in real terms is maintained. The court have no power to order such structured settlements.

Question 65

What is mitigation of loss P259

Answer 65

The claimant is entitled to be compensated, but they are under a duty to keep the losses to a reasonable level. For example they cannot get private health care if the NHS provides it and replaced damaged goods with more expensive ones.

Question 66

What is an injunction P260

Answer 66

It’s an order to no something and if they don’t they will be in contempt of court. If it’s not followed there can be a fine or imprisonment.
Often used for nuisance cases, for example banning a certain activity in certain areas of the day or a mandatory injunction which will make them do something such as to install sound proofing.