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

T wo 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

Legal Principle = Created the neighbor principle to take reasonable care for people your actions might affect
Bought her a drink and an ice cream, the dark glass meant the content could not be seen, she then drank it and poured out the rest which included a dead decomposing snail, she suffered psychological and physical injuries
She could not sue as she did not buy the drink however the manufacturer owed a duty of care to avoid reasonably foreseeable harm to your neighbor

Question 8

Caparo v Dickman

Answer 8

Legal Principle = Created the Caparo test for when the neighbor principle is hard to use, there is now a three step test to show duty of care
The claimant wanted to take over another’s company, they were shown a profit so decided to take the company over, they sued the defendant for a loss, the house of lords made a three step test to show a duty of care

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

pregnant women heard the sound of a crash getting of the tram, she went to see the crash of a motorcyclist who died in the accident, she sued the relatives as she suffered shock and a stillborn

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

Legal Principle = The lorry driver owed a duty of care to those close to those in the accident within immediate aftermath

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.

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

The relationship between the daughter and police was not sufficiently close, it was not fair or reasonable to impose a duty of care to the general public

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

Legal Principle = Created the Bolam test of questioning if the conduct was incompetent or had a substantial body of professions who would disagree

The claimant was suffering with a mental illness, they signed a consent form for electric shock therapy however was not told about the risk of broken bones
He then broke his pelvis and was not given relaxation drugs however there was two opposing theories about giving relaxation drugs, the drugs should only be given if needed and that was not present in this case

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

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.

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.

Question 19

Nettleship v Weston

Answer 19

A learner driver is expected to meet the same standard as a reasonable qualified competent drive

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.

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

Paris v Stepney Borough Council

Answer 21

special characteristics

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

Bolton v Stone

Answer 22

size of risk
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

Haley v London Electricity board

Answer 23

size of the risk 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

Latimer v AEC ltd

Answer 24

precautions 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

Roe v Minister of Health

Answer 25

unknown risk 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

Watt v Herfordshire County council

Answer 26

public benefit 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 precise injury need not have been anticipated, rather the defendant need only have been able to foresee an injury of that kind occurring doesnt need to be precise injury, just foresee a injury 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

Consent - Volenti non fit injuria

Answer 38

- 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 39

consent key cases:

Answer 39

stermer v lawson smith v baker haynes v harwood ogwo v taylor sidaways v governors of the royal hospital ici v shatwell wooldridge v sumner

Question 40

stermer v lawson:

Answer 40

Legal Principle = Could not argue consent as they did not fully appreciate the risks The claimant had borrowed the defendant's motorbike however was not properly shown how to use the motorbike

Question 41

smith v baker:

Answer 41

Legal Principle = He did not consent to the danger as he had no other choice A worker was injured when a crane moved rocks over his head leading them to fall on him. He complained about the risks involved in the work taking place above his head

Question 42

haynes v harwood:

Answer 42

Legal Principle = The defendant was not acting voluntarily as he was acting under a duty to protect the public Defendant failed to adequately tether his house who injured a policeman when they tried to restrain him.

Question 43

ogwo v taylor:

Answer 43

Legal Principle = They were exposed to unavoidable risks of injury and only met their duty so could not argue consent Set fire to his house to burn off paint. C was a fireman attending the fire who then suffered severe burns from the heat despite wearing protective clothing

Question 44

Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals (1985)

Answer 44

Legal Principle = Doctors do not need to give a detailed explanation of remote side effects therefore no liability when they did not explain all possible consequences The claimant suffered neck, shoulders and arm pain which she had a surgery for. The doctor did not explain that in less then 1% of these operations, paraplegia could be caused which did which she argued she did not consent to.

Question 45

ICI v Shatwell

Answer 45

Legal Principle = Ignoring his employers instructions meant that he had voluntarily assumed the risk of injury therefore succeeding in volenti They were quarry workers who were brothers, the brother followed his brothers instructions ignoring his employers instructions and therefore was injured.

Question 46

Woolridge v Sumner

Answer 46

Legal Principle = The rider had not been negligent so there was no breach of duty due to an error in judgement The claimant attended a horse show as a photographer, the rider was going too fast and lost control which injured the claimant. The rider owed spectators a duty of care however the rider had not been negligent

Question 47

Sayers v Harlow Urban district council

Answer 47

Legal Principle = The damages were reduced by 25% due to the way she tried to escape A women was trapped in a cubicle as the door lock became jammed, she tried to escape through the gap between the door and ceiling where she stood on the toilet roll holder which gave way under her.

Question 48

Jayes v IMI

Answer 48

Legal Principle = The claimant was 100% contributory negligent as he took the guard off The claimant lost a finger at work whilst cleaning a machine with the guard off however the claimant took the guard off. The company were negligent for the failure to notice

Question 49

O'Connel v Jackson (1972)

Answer 49

Legal Principle = Damages were reduced by 15% as he suffered greater injuries due to a lack of helmet A motorcyclist suffered an injury during a crash however was not wearing a helmet

Question 50

froom and butcher

Answer 50

Legal Principle = They suffered greater injuries due to their lack of seatbelt so was reduced by 20% The driver of a car was in a car crash when they were not wearing a seat belt

Question 51

Stinton v Stinton

Answer 51

Legal Principle = If the passenger does not know or it is not obvious to a reasonable person that the driver is drunk, they may not decide to claim contributory negligence however accepting a lift from a drunk driver is contributory negligence The claimant knew the driver was over the limit and therefore the damages were reduced by one third for accepting a lift from a drunk driver

Question 52

Badger v Ministry of defence

Answer 52

Legal Principle = The claimant was aware of the risk of cigarettes which may have caused his cancer so it was reduced by 20% Defendant had exposed the claimant to asbestos dust which led to them dying of lung cancer. However the claimant also smoked cigarettes