Negligence Part 1

Question 1

For an individual or company to be liable for negligence, what 3 things need to proved ?

Answer 1

1. A duty of care was owed
2. A duty of was breached
3. The breach caused damage

Question 2

By establishing duty of care, what do we prove and what test decided this ?

Answer 2

We prove there is a legal relationship between the claimant and Defendant
The test is ‘Lord Atkins Neighbour principle’ from the case of Donoghue v Stevenson

Question 3

What does the neighbour principle say?

Answer 3

‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’

Question 4

Who is your neighbour ?

Answer 4

Persons who are closely and directly affected by your acts and omissions

Question 5

The NB is no longer used to determine duty of care so what is today’s test and is there any case

Answer 5

Today we use the Caparo Test
Case of Robinson V Chief constable of West Yorkshire stated that Caparo test should only be used in completely novel situation and there are no similar decisions that have gone before

Question 6

What are the 3 stages of the Caparo test and the case it was made from

Answer 6

3 stages are:
1. Was damage or harm reasonably foreseeable ?
2. Was there a sufficient proximate relationship between the claimant and defendant ?
3. Is it fair, just and reasonable to impose a duty of care ?
It came from the case of Caparo V Dickman

Question 7

What was held in the case of Kent V Griffiths

Answer 7

The courts decided it was ‘reasonably foreseeable’ that the claimant would suffer some harm if ambulance fail to arrive promptly and there wasn’t no good reason for the late arrival either so it was fair, just and reasonable to impose a duty

Question 8

What was held in the case of Maguire V Harland and Wolff plc

Answer 8

It was held that it was not foreseeable that she would suffer some harm or illness as the danger was not known about at the time

Question 9

Was there a sufficient proximate relationship between the claimant and Defendant, what case can be used to demonstrate what we mean in terms of ‘closeness’ in relation to space and time ?

Answer 9

Bourhill v Young
It was held that there was no proximate relationship, the acts/omissions of motorcyclist on different stretch of road to claimant does not affect her so he did not owe a duty of care, no proximity in terms of time and space nor relationship

Question 10

explain a case that shows proximity in terms of relationship

Answer 10

McLoughlin V O’Brien
Lorry driver owed a duty of care, she was directly affected even though she wasn’t involved in the incident as it is her husband and her children, so through their relationship there is proximity, this also happened in immediate aftermath of the event (2hrs) so there was proximity in terms of time and space but only because she was related to the victims

Question 11

Even if the other two parts of the test are satisfied the courts can stop a duty of care being imposed due to ‘policy reasons’, what does this mean ?

Answer 11

This means the courts do not feel like it would be ‘good for society’ to impose a duty of care, it may even cause problems such as ‘floodgate argument’

Question 12

Why are courts reluctant with public authorities

Answer 12

They are reluctant to impose duty of care upon public authorities such as emergency services as they feel this could hinder them from their job which wouldn’t be good for society

However, if PA in question through their actions, either:
created new risk of damage/harm or increased an existing risk of damage or harm courts may impose duty as this will improve practices in future and benefit society

Question 13

Explain a case that illustrates the above points

Answer 13

Capital and counties plc V Hampshire county council
it was held in this situation it was fair just and reasonable to recognise a duty of care against the fire brigade as it would improve practices in the future

Question 14

explain another case that again illustrates the above points

Answer 14

Hill v Chief Constable of West Yorkshire
It was held that relationship between victim and police were not sufficiently close and it wasn’t fair or reasonable for police to owe duty of care to general public in this situation, because they knew the killer may strike but no who the victim would be, so there was no proximity

It wouldn’t be good for society to impose duty of care because if they did, it would lead to policing being carried out in defensive way which diverts resources away from prevention and detection of crime

Question 15

Mention a case that doesn’t involve public authority

Answer 15

Griffiths V Lindsay
It was held it was not fair, just or reasonable to impose duty of care on taxi drivers in relation to drunk passengers in this situation

Question 16

What case does the reasonable man test come from, what does it say and what is it used for

Answer 16

We use the reasonable man test to determine whether there has been a breach of duty.
it was established in case of Blyth V Birmingham waterworks that ‘if the defendant falls below the standard of care which a prudent and reasonable man would have taken in that situation then there is a breach of duty’

Question 17

The test is objective and does not usually take into account the characteristics of the D when deciding whether there was a breach, what case backs this

Answer 17

Nettleship V Weston
Even though she was learner driver the court decided that she should be judged at the standard of a competent driver, not at the standard of the inexperienced learner driver.

Question 18

There are rules relating to the degree of risks involved in a situation or relate to variations in the standard of care expected from the D, what are they ?

Answer 18

1. Unknown risk
2. Small risk
3. Known risk
4. justifiable risk

Question 19

explain first rule with a case

Answer 19

if there is an unknown risk then a reasonable person can’t guard against it, there will be no breach as in Roe v Minister of Health

It was held that as the risk of contamination was not known at the time there was no breach and claimant could not claim compensation

Question 20

explain 2nd rule with a case

Answer 20

when there’s small risk unlikely there will be breach as long as D has taken some measures to deal with it, reasonable person not expected to go through great length to guard against harm, just has to take some measures to eliminate risk as shown in Bolton V Stone

Held: Cricket ball only hit out of ground 6x in 30yrs, they took precautions by putting up high fence and reasonable person wouldn’t do anything more. No breach

Question 21

explain 3rd rule with case

Answer 21

When there’s a known risk of damage or harm a RP would take steps to guard against it so if they don’t there’ll be a breach as in Haley V London Electricity Board

Held: EB knew this road was used by no. of blind people, known risk and greater precautions should’ve been taken, they only put warning signs up no barriers and a reasonable person would do more than that so there was a breach

Question 22

Explain 4th rule with a case

Answer 22

sometimes acceptable to take risk if justified, if there is public benefit to risk, greater emergency, greater risks can be taken and lower standard of care can be accepted
Case of Watt V Hertfordshire County Council

Held: did not breach duty of care to claimant because of emergency situation and the fact that benefit of saving a life outweighed the need to take precautions

Question 23

What is the practicality of taking precautions ? Give a case to support this

Answer 23

It is when the courts will balance the risk involved in a situation with the cost and effort required to take adequate precautions to remove the risk.

Case of Latimer v AEC Ltd
They minimised the risk by placing saw-dust, no reason to close the factory as this would cost them a lot so need need to eliminate every possible risk

Question 24

When the D is an expert of professional, what is the standard of care expected from him? Case ?

Answer 24

A reasonable person within that profession or field of expertise.
Case of Bolam

Question 25

What questions from a test came out the Bolam case ?

Answer 25

1) Does the defendants conduct fall below standard of the ordinary competent member of that profession ?
2) Is there a substantial body of opinion within the profession that would support the course of action taken by the D
(Case of Bolitho stated if judge feels opinion given by experts is unreasonable then that evidence doesn’t count)

Question 26

What is the standard of care expected from a child? Case ?

Answer 26

Standard of care is lower than what applies to adults. compared to a reasonable child of the same age.

Case - Mullin v Richards

Question 27

(Special Characteristics) - Where the consequences of harm to a particular person are greater than for other individuals , there’s a higher standard of care owed to that person, what case ?

Answer 27

Paris V Stepney
Man was already blind - they should’ve provided goggles, cost and effort of providing goggles was very small compared to consequence of the risk, so precaution should’ve been taken