Negligence- personal injury

Question 1

Negligence

Answer 1

A failure to exercise the care that a reasonably prudent person would exercise in similar circumstances.

Question 2

Public Policy and duty of care:

Answer 2

The test used to establish negligence ensures that there is no excessive amounts of claims i.e. America, however it allows novel situations to be investigated. i.e. Watson

Question 3

Watson v British Boxing Board of control (2000)

Answer 3

Watson was injured during a boxing match and suffered severe brain injuries. He claimed from the board, arguing that if proper medical facilities had been provided at ringside he would not has as severe injuries. The CofA decided, using the Caparo test, the board owed a duty of care as they were the responsible body for licensing prof. boxing.

Question 4

Robinson v Chief Constable of West Yorkshire (2018)

Answer 4

Two Policemen were having a violent struggle with a suspect they were trying to arrest. This struggle resulted in them knocking over the claimant who was an old lady, she claimed damages from the police for her foreseeable personal injury’s caused by their negligence which rejected the previous judgement that the police had complete immunity.

Question 5

Elements of negligence: (essay plan)

Answer 5

1. There was a duty of care owed to the claimant
   - reasonably foreseeable harm
   - proximity of relationship
   - fair, just and reasonable
2. The duty of care has been breached
   - D falls below the standard of care
   - appropriate to the degree of risk
3. The breach of duty caused the damage
   - D breach caused the damage
   - Damage was reasonably foreseeable

Question 6

First key element of negligence: Duty of care

Answer 6

Legal relationship between the claimant and defendant, established in Donoghue v Stevenson

Question 7

Donoghue v Stevenson:

Answer 7

Mrs Donoghue went to a cafe with a friend. The friend bought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer.

Held:

Her claim was successful. This case established the modern law of negligence and established the neighbour test.

Lord Atkin:
“The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question “ Who is my neighbour ?” receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour ? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

Question 8

Caparo v Dickman

Answer 8

Caparo Industries purchased shares in Fidelity Plc in reliance of the accounts which stated that the company had made a pre-tax profit of £1.3M. In fact Fidelity had made a loss of over £400,000. Caparo brought an action against the auditors claiming they were negligent in certifying the accounts.

Held:

No duty of care was owed. There was not sufficient proximity between Caparo and the auditors since the auditors were not aware of the existence of Caparo nor the purpose for which the accounts were being used by them.

Lord Bridge:

(The Caparo test)

“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”

ESTABLISHED THE CAPARO TEST:

Question 9

Caparo test:

Answer 9

This was used when the neighbor principle was difficult to apply, focused on whether society would benefit from a duty of care imposed.
Three clear parts:
1. Was the damage or harm reasonably foreseeable
2. Is there a sufficiently close relationship between the claimant and defendant
3. Is it fair, just and reasonable to impose a duty

Question 10

Key element of negligence (Caparo test) 1: Damage or harm reasonably foreseeable:

Answer 10

This is based on the reasonable person test and is dependent on the facts of the case
Kent v GriffIths

Question 11

Kent v Griffiths (2000)

Answer 11

The claimant was having an asthma attack. Her doctor attended her home and called for an ambulance at 16.25. The ambulance, which was only 6 miles away, did not arrive until 17.05. The claimant suffered respiratory arrest. Two phone calls had been made to enquire why the ambulance had not arrived and the operator confirmed that it was on its way. The doctor gave evidence that had she known of the delay she would have advised the Claimant’s husband to drive her to the hospital.
Reasonably foreseeable that the claimant would suffer further illness if the ambulance did not arrive promptly

Question 12

Key element of negligence (Caparo test) 2: Proximity of relationship

Answer 12

Even if the harm is foreseeable, we still need to show that there is a relationship between the defendant and the claimant, this can cover situations where the defendant is not directly related to the victim but should still be allowed to sue, must be a link

Bourhill v Young and McLoughlin v O’Brien

Question 13

Bourhill v Young (1943)

Answer 13

The claimant was a pregnant fishwife. She got off a tram and as she reached to get her basket off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant heard the collusion but did not see it. A short time later, the claimant walked past where the incident occurred. The body had been removed but there was a lot of blood on the road. The claimant went into shock and her baby was still born. She brought a negligence claim against the defendant’s estate.

Held:

No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between the claimant and defendant when the incident occurred.

Not close enough to have a duty of care and didn’t want it to open the floodgates.

Question 14

McLoughlin v O’Brien (1982)

Answer 14

The claimant’s husband and three of her children were involved in a serious road traffic accident in which their car was struck by a lorry due to the negligence of the defendant lorry driver. Unfortunately one of the children was killed on impact. An ambulance took the injured parties to hospital. Another of the claimant’s sons was a passenger in a car behind the family. The driver took him home and told his mother of the incident and immediately drove her to the hospital. She saw her family suffering before they had been treated and cleaned up. As a result she suffered severe shock, organic depression and a personality change. She brought an action against the defendant for the psychiatric injury she suffered. The Court of Appeal held that no duty of care was owed. She appealed to the House of Lords.

Held:

The appeal was allowed and the claimant was entitled to recover for the psychiatric injury received. The House of Lords extended the class of persons who would be considered proximate to the event to those who come within the immediate aftermath of the event.

The defendant owes a duty of care to the family members which ensures a limited amount of claims.

Question 15

Key element of negligence (Caparo test) 3: Fair, just and reasonable to impose a duty:

Answer 15

This allows the courts to decide if it ought to impose a duty of care on the defendant, this allows the courts to consider what is best for society as a whole.
They can also consider if claims will ‘open the flood gates’

Question 16

Hill v Chief Constable of West Yorkshire (1990)

Answer 16

Jacqueline Hill was the final victim of Peter Sutcliffe (the Yorkshire Ripper). He had committed 13 murders and 8 attempted murders over a five year period. Jacqueline’ Mother made a claim against the Chief Constable on the grounds that the police had been negligent in their detection and detention of Sutcliffe. The defendant applied to have the claim struck out on the grounds that there was no cause of action since no duty of care was owed by the police in the detection of crime.

Held:

No duty of care was owed.

Not a potential target, as the whole public would be able to sue.

Question 17

2. Key element - Breach of duty: objective standard

Answer 17

Once it has been established that a duty of care is owed it then needs to be established that the duty of care has been breached. This is the objective standard of a ‘reasonable person’, i.e. drivers, doctors, manufacturers
The court needs to decide if there are any special characteristics that the defendant has

Question 18

Bolam v Friern Barnet Hospital Management Committee (1957)

Answer 18

The claimant was undergoing electro convulsive therapy as treatment for his mental illness. The doctor did not give any relaxant drugs and the claimant suffered a serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. The claimant argued that the doctor was in breach of duty by not using the relaxant drug.

Held:

The doctor was not in breach of duty. The House of Lords formulated the Bolam test:

“a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”

Bolam test established

Question 19

The Bolam Test

Answer 19

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?

needs to be yes and no to show liability

Question 19

Mullin v Richards

Answer 19

Two 15 year old school girls were fighting with plastic rulers. A ruler snapped and a splinter went into one of the girls eyes causing blindness. The girl brought an action against the other girl for her negligent action.

Held:

The girl was only expected to meet the standard of a reasonable 15 year old school girl not that of a reasonable man. She was found not to be in breach of duty.

Question 19

Nettleship v Weston

Answer 19

The defendant was a learner driver. She was taking lessons from a friend. The friend checked that the defendant’s insurance covered her for passengers before agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr Nettleship told her to straighten the wheel but Mrs Weston panicked and failed to straighten the wheel. She approached the pavement and Mr Nettleship grabbed the handbrake and tried to straighten the wheel but it was too late. She mounted the pavement and hit a lamp post. Mr Nettleship fractured his knee. The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk.

Held:

A learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation.

Learners have the same standard if a competent driver

Question 20

Risk factors:

Answer 20

The court can also consider risk factors that raiser or lower the standard of care, special characteristics, risk factors, appropriate precautions, risks know at the time,public benefit

Question 21

Special characteristics - Paris v Stepney Borough Council

Answer 21

The claimant only had sight in one eye due to in injury sustained in the war. During the course of his employment as a garage hand, a splinter of metal went into his sighted eye causing him to become completely blind. The employer did not provide safety goggles to workers engaged in the type of work the claimant was undertaking. The defendant argued there was no breach of duty as they did not provide goggles to workers with vision in both eyes and it was not standard practice to do so. There was therefore no obligation to provide the claimant with goggles.

Held:

There was a breach of duty. The employer should have provided goggles to the claimant because the seriousness of harm to him would have been greater than that experienced by workers with sight in both eyes. The duty is owed to the particular claimant not to a class of persons of reasonable workers.

Question 22

Size of the risk - Bolton v Stone

Answer 22

Miss Stone was injured when she was struck by a cricket ball outside her home. She brought an action against the cricket club in nuisance and negligence. The cricket field was surrounded by a 7 foot fence. The pitch was sunk ten feet below ground so the fence was 17 feet above the cricket pitch. The distance from the striker to the fence was about 78 yards and just under 100 yards from where the claimant was standing. A witness who lived in the same road as the claimant but close to pitch said that five or six times during the last 30 years he had known balls hit his house or come into the yard. Two members of the Club, of over 30 years’ standing, agreed that the hit was altogether exceptional to anything previously seen on that ground.

Held:

No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances. The cricket ground had been there for 90 years without injury and provided a useful service for the community.

not breached its duty of care, where there is a higher risk of injury more precautions should be taken

Question 23

Size of the risk: Haley v London Electricity board

Answer 23

Some workmen were digging a trench in a pavement. They went off to lunch. They had nothing to fence of the trench so they left a shovel and pick at one end and a punner at the other end to warn pedestrians. The claimant, a blind man, tripped on the punner and fell hitting his head. As a result of the fall he became deaf. The defendant argued they had done all that was necessary to warn an ordinary person of the danger and there was no need to take extra precautions for blind persons as it was not foreseeable that a blind person would be walking unaided down that street.

Held:

The defendant was in breach of duty. It was foreseeable that a blind person might walk down the street and they should be given appropriate protection.

Question 24

Appropriate precautions - Latimer v AEC ltd

Answer 24

the court will consider the cost and effort in taking precautions verses the risk

The claimant worked in the defendant’s factory and slipped up on the factory floor. The factory had become flooded due to adverse weather conditions. The defendant’s had put up warning signs mopped up and placed sawdust in the most used places to make it as safe as possible. The trial judge held that there had been a breach of duty as the defendants should have closed the factory if it was unnsafe. However, no argument had been advanced on this.

Held:
there is no breach if sufficient steps have been taken to prevent injury
There was no breach of duty. There was no duty to close the factory. The defendant only had to take reasonable precautions to minimise the risk which they had done. There was no need to go to great expense to eliminate any possible risk and thus no obligation to close the factory.

As the risk increases, the standard of care increases

Question 25

Unknown risks: Roe v Minister of Health

Answer 25

Two claimants had been given an anaesthetic for minor operations. The anaesthetic had been contaminated with a sterilising fluid. This resulted in both claimants becoming permanently paralysed. The anaesthetic had become contaminated during storage. The anaesthetic was stored in glass ampoules which were emerged in the sterilising fluid. It transpired the ampoules had minute cracks which were not detectable with human eye. At the time it was not known that the anaesthetic could be contaminated in this way and the hospital followed a normal procedure in storing them this way.

Held:

There was no breach of duty. The risk was not foreseeable as it was an unknown risk at the time.

Question 26

Public benefit - Watt v Herfordshire County council

Answer 26

If there is an emergency then greater risks can be taken at a lower standard of care
The courts are realistic about emergency responses, they accept that speedy action was taken without the benefit of hindsight
The claimant was a fireman. A woman had been involved in a traffic accident and was trapped underneath a lorry. This was 200-300 yards away from the fire station. The fire services were called to release the woman. They needed to transport a heavy lorry jack to the scene of the accident. The jack could not go on the fire engine and the normal vehicle for carrying the jack was not available. The fire chief ordered the claimant and other firemen to lift the jack on to the back of a truck. There was no means for securing the jack on the truck and the firemen were instructed to hold it on the short journey. In the event the truck braked and the jack fell onto the claimant’s leg causing severe injuries.

Held:

There was no breach of duty. The emergency of the situation and utility of the defendant’s conduct in saving a life outweighed the need to take precautions.

Question 27

Day v High Performance Sports

Answer 27

The claimant an experienced climber, fell from an indoor climbing wall and suffered serious injuries. She had to be rescued from the wall by the duty manager at a height of 9 m when she became frozen in her position. The way that the manager rescued her was inappropriate causing her to fall. The court decided that the manager and the center had not breached their duty of care in view of the emergency situation.

Question 28

3. Damage - remoteness and causation

Answer 28

the claimant must also prove that the breach of duty was the cause of any damage.
Damage can be personal injury or financial loss.
1. Causation
2. Remoteness of damage

Question 29

Causation:

Answer 29

Factual causation - ‘but for’ test but for the defendants actions or omissions, would the injury or damage occured?
Barnett v Chelsea
Intervening Acts - same as criminal law = r v pagett

Question 30

Barnett v Chelsea and Kensington Hospital Management Commitee - But for test

Answer 30

Mr Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him.

Held:

The hospital was not liable as the doctor’s failure to examine the patient did not cause his death.

Introduced the ‘but for’ test ie would the result have occurred but for the act or omission of the defendant? If yes, the defendant is not liable.

Question 31

Remoteness of damage and key case:

Answer 31

we must also prove that the damage is not too remote from the negligence of the defendant.
The Wagon Mound:
Fuel oil had been negligently spilled from the defendants ship on to water in Sydney Harbour. It spread towards the claimants wharf where welding repairs were being carried out to another ship. Two days later, the oil caught fire because of sparks from the welding. It was decided that although damage done to the wharf by oil being spilled was reasonably foreseeable , fire damage was not reasonably foreseeable. This type of damage was too remote from the original act to be negligent. Must be reasonably foreseeable.

Question 32

Hughes v Lord Advocate:

Answer 32

wo boys aged 8 and 10 went exploring an unattended man hole. The man hole had been left by workmen taking a break. It was surrounded by a tent and some paraffin lamps were left to warn road users of the danger. The boys took a lamp down the hole. One of them dropped the lamp and an unforeseeable explosion occurred resulting in extensive burns.

Held:

The damage was not too remote it was foreseeable that the boys may suffer a burn from the lamp. The fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable.

Question 33

Bradford v Robinsons Rentals

Answer 33

The claimant, Bradford, was an employee of the defendants, Robinson Rentals, and in the course of his employment it was requested that he be sent to assist a colleague in a vehicle repair. This request was made in January, during a time at which the defendants were aware of particularly bad weather concerns resulting from an unusually cold winter. The trip necessitated the claimant to endure a travelling time of approximately 20 hours’ driving (a distance of 450 to 500 miles in total), with both the vehicle that Bradford was driving, and the vehicle he was driving to, lacking any form of heating function. Subsequently, the exposure to the severely cold weather resulted in the claimant developing injuries stemming from frostbite, despite that he took reasonable caution in dressing warmly.

Issues
Were the injuries sustained by the claimant of the form that could be reasonably foreseen and thus claimed for in tort.

Decision/Outcome
The Court applied Hughes v Lord Advocate [1963] 1 All ER 705 and found that whilst the claimant’s specific injuries were not foreseeable (due to the rarity of frostbite injuries in England), the kind of injury was foreseeable, namely injury resulting from exposure to extreme weather conditions. It was reaffirmed that in assessing harm, the precise injury need not have been anticipated, rather the defendant need only have been able to foresee an injury of that kind occurring.

Liable if the type of injury was foreseeable.

Question 34

Doughty v Turner Asbestos

Answer 34

An asbestos lid was accidentally knocked into a cauldron of molten liquid. A few moments later an explosion occurred. The claimant was standing close by and suffered burns from the explosion. The explosion occurred as a result of the asbestos reacting with the chemicals in the liquid in the high temperature. At the time of the incident it was not known that the asbestos could react in that way.

Held:

The damage was too remote. It was not foreseeable that an explosion would occur. Whilst it may be foreseeable the lid may have caused a splash resulting in a scold, it was not foreseeable that an explosion would occur resulting in burns.

Question 35

Take your victim as you find them - egg shell rule key case. Smith v Leech Brain Co.

Answer 35

A widow brought a claim against the defendant under the Fatal Accidents Act for the death of her husband. The defendant employed the husband. As a result of their negligence he incurred a burn to his lip. The lip contained pre-cancerous cells which were triggered by the injury sustained. He died three years later from cancer.

Held:

The burn was a foreseeable consequence of the defendant’s negligence and this resulted in the death. The defendant was liable for his death. It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell skull rule applies and the defendant must take his victim as he finds him.

the type of damage may be greater due to a pre-existing condition

Question 36

Res ipsa loquitur - ‘the thing speaks for itself’

Answer 36

The burden of proving the negligence is on the claimant- on the balance of probability. This is when there is a clear breach of duty.
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
- there is no other explanation for the injury

Scott v London and St Katherine Docks:
The claimant was a dockworker who was injured when large, heavy bags of sugar fell from the defendant’s crane and hit him. The claimant sued the defendant in the tort of negligence.

Issues
Establishing negligence involves establishing that the defendant breached their duty of care to the claimant. To establish breach, the claimant must establish that the defendant failed to act as a reasonable person would in their position.

Here, the claimant could not prove what had happened to cause the sugar bags to fall, making it difficult to prove that the defendant had breached their duty. The issue was whether a claimant can establish negligence if they cannot prove what the defendant did to cause the harm.

Decision/Outcome
The High Court held that a finding of liability was possible in this case.

The court relied on the doctrine of res ipsa loquitur (literally ‘the thing speaks for itself’). This doctrine holds that if the defendant was in control of a situation, and an accident occurs which would not normally occur in the absence of carelessness of some kind but the cause of the accident is unknown, the burden of proof shifts to the defendant to adduce evidence that he was not negligent. If he cannot, a breach of duty will be made out. If he can, the court must assess this evidence to determine whether it is still reasonable to presume negligence.

The court held that this accident was clearly the sort of thing which would not occur if someone had not been negligent. As the defendant was not able to prove that it had not breached its duty to the claimant, it was liable.

Question 37

Defences to a negligence claim:

Answer 37

contributory negligence
consent

Question 38

Contributory negligence as a defence:

Answer 38

This is the claim that the claimant has partially caused or contributed to their own injury.
Law reform act- any damages awarded to the claimant can be reduced according to the extent or level to which the claimant contributed to their own harm. The amount of blame will be decided by the judge, the amount of damages will be set as if theres no contributory negligence, then the judge will decide what percentage the amount will be reduced by. This is a partial defence
Sayers v Harlow Urban District council
Jayes v IMI

Question 39

Sayers v Harlow Urban District council (1958)

Answer 39

The plaintiff visited a public lavatory, owned by the defendant – a local authority. She locked the door, but when she tried to get out, she could not as the lock was stuck. The plaintiff unsuccessfully tried to attract attention for 15 minutes. Then she decided that she could get out of the lavatory by climbing over the door. To do this, she stood with one foot on the toilet seat and the other on the toilet roll holder, whilst holding onto the door and a pipe with her hands. The plaintiff realised that this method of escape was not possible. On climbing down, the plaintiff again placed some weight on the toilet roll holder, which rotated and she fell to the ground, sustaining injury. The plaintiff sued the local authority for negligence. The county court held that the defendants were negligent, but dismissed the plaintiff’s claim on grounds that the damage to the plaintiff was too remote. She appealed to the Court of Appeal.

Issue
Were the attempts of the plaintiff to climb over the door of the toilet cubicle natural and probable consequences of the negligent act of the defendant?

Decision/Outcome
The appeal was allowed.

(1) In determining the remoteness of the damage, the court needs to balance the risks taken by the plaintiff against the consequences of the defendants’ breach of duty.

(2) The plaintiff did not take a risk that was disproportionate to the necessities of her situation. Therefore, the injury that the plaintiff sustained was not too remote from the negligent act of the local authority.

(3) However, on the facts, the plaintiff is guilty of contributory negligence, as having realised that she could not climb over the door, she should have appreciated that she could not rely entirely on the toilet roll holder to support her weight. Hence, she was 25 per cent to blame for the accident.

Question 40

Jayes v IMI (Kynoch) Ltd

Answer 40

The claimant lost a finger at work whilst cleaning a machine with the guard off. The employers were liable for breach of health and safety, rules for their failure to ensure that the guard was in place. However the claimant was found to be 100% contributory negligent as he admitted his fault in taking the guard off

Question 41

Cases for contributory negligence:

Answer 41

O’Connel v Jackson:
Damages were reduced by 15% when the rider of a moped was injured and suffered greater injuries because he was not wearing a helmet
Froom and Butcher:
The driver of a car suffered greater injuries than would have been the case if wearing a seat belt. Reduced damages by 20%
Stinton v Stinton:
The damages were reduced by 1/3 for accepting a lift from a drunk driver. The claimant knew that the driver was over the limit, if they did not know then it would not be contributory negligence.
Badger v Ministry of Defence
The claimant died of lunger cancer age 63, the defendant admitted a breach of statutory duty by exposing the claimant to asbestos. The claimant also smoked a lot so would have been unlikely to die at such a young age

Question 42

Consent - Volenti non fit injuria

Answer 42

• full defence
• when the claimant accepts voluntary assumption of the risk of harm.
  To succeed, the defendant has to show:
• knowledge of the precise risk involved
• exercise of free choice by claimant
• a voluntary acceptance of risk
  SUBJECTIVE

Question 43

Consent key cases:

Answer 43

Stermer v Lawson: C must fully understand the risk
Smith v Baker: must voluntarily undertake the risk of harm
Haynes v Harwood: Where C has a ‘duty to act’ and is then injured by D’s negligence, the defence will not succeed, as C had no choice but to act.
Owgo v Taylor:
Sidaway v Governers medical case