Negligence: Personal Injury + Damage To Property

Question 1

Explain the first element of Negligence: Duty Of Care.

Answer 1

• Donoghue v Stevenson: Lord Atkin created ‘neighbour principle’- owe our neighbour a duty of care to ensure our acts/omission don’t cause any damage/harm to anyone.
• Caparo v Dickman: neighbour principle developed by a 3-part test set out by Lord Bridge. (only go through in novel cases- never go through in a 10/30 marker)
  1) Was damage/harm reasonably foreseeable?
  Kent v Griffiths
  2) Is there a sufficient proximate (close) relationship between C + D?
• Bourhill v Young: D wasn’t proximate enough to C
• McLoughlin v O’Brian: duty of care can extend to people who would be considered proximate to event- those who came within immediate aftermath of event.
  3) Is it fair, just, + reasonable to impose a duty?
  Consider what is best for society as a whole.
• Hill v Cheif Constable of West Yorkshire: police enjoyed a general immunity in respect of anything NOT done by them in the course of investigating/preventing crime.
• Robinson (2018): police will be liable for negligence acts, but NOT for omissions. Caparo should only be only used in ‘novel’ cases.
• Tindall v Chief Constable of Thames Valley Police (2022): no duty of care is owed by emergency services in circumstances where there’s been a failure to act to prevent harm (omission).

Question 2

Explain the second element of Negligence: Breach Of Duty

Answer 2

Standard is objective- of a reasonable person.
Reasonable Person:
* Reasonable person- ordinary person performing the tasks competently.
* There are a number of variations of ‘reasonable person’, + court may have to consider whether D has special characteristics: is he a professional, is he inexperienced, is he a child.
Is He A Professional? (doctor, nurse, teacher, e.t.c.)
* Bolam: professionals are judged by the standard of the profession as a whole. Asks 2 questions for deciding whether professions have breached their duty of care.
1) Does D’s conduct fall below standard of ordinary, competent, member of that profession?
2) Is there a substantial body of opinion within professional that’d support course of action taken by D?
* Pook v Rossall School (2018): more recent case, confirming Bolam.
Is He Experienced?
* Nettleship v Weston: learners/anyone in experience is expected to perform tasks to the same standard as a more experienced person.
Is He A Child? (look out for age)
No age of legal responsibility in tort law.
* Mullin v Richards: standard for children, is that of a reasonable person of D’s age at same time of accident.
Risk Factors:
Has C Any Special Characteristics Which should Be Taken Account Of?
* Paris v Stepney Borough Council: higher standard of care required
What’s The Size Of The Risk? (always applicable)
* Bolton v Stone: where risk is small, unlikely there’s a breach of duty.
* Lewis v Wandsworth London Borough (2020): confirmed decision in Bolton.
Have All Appropriate Precautions Been Taken? (always applicable)
* Latimer v AEC Ltd
Were Risks Known About At Time Of Accident?
* Roe v Minister Of Health: if risk of harm isn’t known, can be no breach.
Is There A Public Benefit To Taking Risk?
* Day v High Performance Sports: if there’s an emergency, then greater risks can be taken + lower standard of care’s accepted.

Question 3

Explain the third element of Negligence: Damage

Answer 3

• Looks at both causation + remoteness of damage.
• Negligence can’t be sustained where damage is trivial + real damage must’ve been suffered.
  Factual Causation:
• Ritz Hotel Casino v Al-Daher: ‘But for’ D’s act/omission, injury/damage wouldn’t have occurred.
• Intervening at can break chain of causation (novus actus interveniens)- 3rd party, C’s own act, natural but unpredictable event.
  Remoteness Of Damage- Legal Causation:
• The Wagon Mound: test for remoteness- injury/damage must be reasonably foreseeable (test for legal causation). DAMAGE TO PROPERTY FINISHES HERE.
  Type Of Injury Foreseeable:
• Bradford v Robinson Rentals: consequence foreseeable, even if more severe.
  Take Your Victim As You Find Him:
• Smith v Leech Brain + co: ‘egg shell rule’- type of damage is reasonably foreseeable, but is much more serious because C had a pre-existing condition, then D’s liable for all consequences.