Negligence (P2) Flashcards
What is the first element of the Caparo v Dickman test for duty of care?
-The first element is that the harm must be reasonably foreseeable. This is illustrated by the case of Bourhill v Young - it was not reasonably foreseeable. In the case of Kent v Griffith however it was reasonably foreseeable.
What is the second element of the Caparo v Dickman test for duty of care?
There also has to be proximity (a close relationship) between the defendant and the victim. Where there is physical injury the courts are likely to find physical proximity where the victim is part of the event/accident as there is proximity in terms of space and time. Bourhill v Young.
What is the third element of the Caparo v Dickman test for duty of care?
Finally, it must be fair, just and reasonable to impose a duty of care. In some cases, there are policy reasons why it is not fair, just and reasonable to impose a duty of care; generally because the courts are concerned that any extension to the types of claims that could be brought would open the ‘floodgates of litigation’. Hill v CCWY.
When does a breach of cuty occur?
A breach of duty occurs when the defendant falls below the standard expected of a reasonable man, Wells v Cooper.
What is the first thing the courts will consider for determining breach of duty?
Whether the defendant has any special characteristics. A learner driver will be judged at the same level as a competent driver, Nettleship v Western. A professional will be judged against the standards of a competent professional using a tried and tested procedure, Bolam v Frein Barnett Hospital trust. Children are judged by the standard of reasonable children of the same age, Mullins v Richards.
What is the second thing the courts will consider for determining breach of duty?
The courts look at factors to decide what is reasonable. The courts look at whether the claimant has any special characteristics. In Paris v Stephney. They are owed a higher duty of care.
What is the third thing the courts will consider for determining breach of duty?
The courts will consider the size of the risk. Bolton v Stone, small risk so no breach. However, in Haley v London Electricity Board there was a high risk of harm occurring so they had breached their duty.
What is the fourth thing the courts will consider for determining breach of duty?
The courts will look at the practicality of precautions and how easy it is to prevent a risk. In Latimer v AEC the factory owners had taken reasonable steps to reduce the risk of injury so they had not breached their duty.
What is the fifth thing the courts will consider for determining breach of duty?
The courts will look to see if the risk of harm was known about at the time of the accident. As was seen in Roe v Minister of Health if the risk of harm is not known, there can be no breach.
What is the sixth thing the courts will consider for determining breach of duty?
The courts will see if there was any public benefit from taking the risk. If there was a benefit the courts are more likely to find the defendant has NOT breached their duty. In Watts v Hertfordshire County Council the benefit of attending a RTA outweighed the fact that the fire fighters had travelled in an inappropriate vehicle.
What is needed for a successful negligence claim?
there must be damage which means loss resulting from a
breach of the duty of care.
What must the courts consider to decide whether the breach caused the damage?
-The breach must cause the damage so the courts first consider factual causation. 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 of Barnett v Chelsea and Kensington Hospital. It also needs to be decided whether there was a break in causation.
-The courts will consider whether the damage caused was reasonably foreseeable and not too remote, Wagon Mound.
-The type of injury has to be foreseeable not the precise manner in which it occurred, Bradford V Robinson Rentals, Doughty v Turner.
-You must take your victim as you find him. If the type of injury or damage is reasonably foreseeable but it is much more serious because the claimant had a pre existing condition then the defendant is liable for all the subsequent consequences, Smith v Leech Brain and Co.
