NEGLIGENCE P1-SB Flashcards
Define Negligence
Doing something the reasonable person wouldn’t do or failing to do something the reasonable person would do.
(Blyth V Birmingham waterworks)
Define the reasonable person
The reasonable person is the man or women on the London underground
Define the Robinson Approach
The duty of care can be established through a pre-existing or analogous precedent the court will apply this to the case before than
(Robinson V CC west York police)
Define the Caparo test + case
Foreseeable- court will ask where D’s actions are reasonable foreseeable and could result in the loss or damages to C (Kent V Griffiths)
Proximate- court will determine the parties relationship whether it is proximate e.g. space + time , c + d have a relationship (Bournville V young)
Fair, Just and reasonable- must be F,J,R for a duty of care to exist the court will take account of any reasons why a duty should exist ( Hill V CC west Yorkshire)
Explain Breach of duty
For a successful claim, C must demonstrate that the D has breached their duty of care
Define the ordinary person
The ordinary person will be held to the same standard as the reasonable man or women on the London underground
Explain the Bolam test (Professional)
Asks would a reasonable and competent body of professional opinion have acted in the same way
Explain the Montgomery test
Doctors must inform their patients of any and all risks linked to procedure, surgery or medical treatment given
Explain the rule with Learners + case
Learners or armatures are held to the standard of the experienced person ( Nettleship: Held that a learner driver is expected to meet there same standard as a reasonable qualified competent driver)
Explain the rule with children + case
Children are held to the standard of a reasonable child of their age
(Richard V Mullins)
Explain Special characteristics + case
If C has a special characteristic it is the responsibility of the D to increase protection against potential risks (Paris V Stepney BC held employers knew of the consequences of injury to c’s good eye would be serious)
Explain size of risk + case
If the risk of harm if likely then precautions should be in place to reduce the risks as much as possible (Bolton V Stone Held the club had done everything possible to reduce the size of the risk)
Explain cost and effort required for precautions + case
Where the D has taken reasonable precautions to prevent against a risk they are not expected to go to large expense or effort to completely irradiate the risk ( Latimer V AEC)
Explain knowledge of the danger + case
Where the risk is unforeseeable than the D will not be in breach of their duty when risks occurs where D follows the standard practice at the time they will not be unreasonable ( Roe V Minister of health)
Explain public benefit + case
Where the D is carrying out a risk which will have public benefit such as saving a human life this will out weigh the need to take precautions. ( Watt V Hertfordshire CC)
Explain Factual Causation + case
But for D’s action would the loss/damage occurred when it did as it did if it would have done there would be a breach in the chain (Barnett V Chelsea Kensington HELD: The doctors failure to examine Mr B didn’t cause his death no cure to arsenic poison)
Explain Legal Causation (Intervening acts): Act of claimant + case
C does something unreasonable and unforeseeable then they will break the chain of causation for the original injury (McKnew V Holland)
Explain Legal Causation (Intervening acts): Act of Third Party + case
A third party does something unforeseeable and causes damages to the C then the chain of causation would break (Knightly V John and others)
Explain Legal Causation (Intervening acts): Act of God + case
Unforeseeable natural event which breaks the chain of causation, it must significantly contribute to the final consequences of the result
Explain Legal Causation: Remoteness of Damage and type of injury
The injury or damage must be reasonable foreseeable/a reasonable foreseeable person should predict or expect from their negligent action. D will be liable if the type of damage was foreseeable even if the way it happen was not (Wagon Mound)
Explain the Thin skull rule
You must take your victim as you find him, if the type of injury is reasonable foreseeable but is much more serious because C has a pre-existing condition than the D is liable for all subsequently consequences (Smith V Leech Brain)
DEFENCES: Contributory Negligence
From the law and reform act of 1945, its defined as partly causing the extent of there injuries. C must fail to taker care and add to the extent of the injuries.
DEFENCES: Volenti Non Fit Injuria
The defence will be successful when C has accepted the risk and has knowledge of the risk ( Morris V Murray)
