Negligence: Physical Injury To People And Damage To Property

Question 1

Test for duty of care

Answer 1

In order for negligence to be proven, there must a duty of care in place that has been breached and has caused ‘harm in fact’, creating a direct link between the breach and damage (causation).

The tests for duty of care are under Donoghue v Stevenson and Caparo v Dickman

Donoghue v Stevenson (original test) - established the neighbour principle:
- Lord Atkin: ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure your neighbour’
- Neighbour = anyone so closely and directly affected by your actions that you ought reasonably to have them in your compensation

Caparo v Dickman (new test) - established the Caparo test:
1) Damage must be reasonably foreseeable - objective test
2) Relationship of proximity between parties - close in terms of time, space and relationship
3) Must be fair, just and reasonable to impose a duty of care - policy test restricting the imposition of a duty, prevents floodgates opening to claims and prevents unreasonable burdens of operations/budgets of public services

• Robinson v Chief Constable of West Yorkshire ruled that the Caparo test shall only be used in novel situations, where established principles do not provide an answer (no previous similar cases)
• Established principles = the courts will consider the closest analogies in the existing law maintaining the coherence of law and avoiding inappropriate distinctions

The concept of duty of care is evaluated in terms of established principles, foreseeability and proximity. Also with application of neighbour principle.

Question 2

Breach of duty of care

Answer 2

Breach of DoC is an objective test which comes from Blyth v Birmingham Water Works:
‘Omitting to do something a reasonable man would do, or doing something a reasonable man would not do’ - falling below requisite standard
- Although this is a reasonable test, an appropriate degree of knowledge is added to the reasonable person
- A professional will be judged by the standard of a reasonable person of that profession
- Doesn’t apply to trainees in any skill - they will be judged by the standard of a reasonable person
- A child will be judged by the standard of a reasonable child

In determining whether the D acted reasonably, the court will consider 4 things to determine if D acted at the standard of a reasonable person:
1) Degree of risk involved
- The greater the risk factors, such as size, seriousness and likelihood of the risk, the more precautions the D will have to take for their conduct to be judged as acting reasonably
2) Cost of precautions
- The court won’t expect the cost of precautions to outweigh the risk involved. Therefore, D doesn’t have to take excessive measures to guard against minor risks, just reasonable precautions a reasonable person would take
3) Seriousness of injury
- The more serious the potential magnitude of harm, the greater level of care required to be judged as reasonable
4) Importance of the activity - eg social benefit
- Some risk may be acceptable if risk undertaken is socially important/beneficial

Question 3

Damage

Answer 3

Causation

The resulting damage must be:
- caused by the breach - wouldn’t have happened ‘but for’ the breach
- not too remote from the breach, if the damage was a reasonable foreseeable type

The precise chain of events need not be foreseeable, nor is it necessary for the extent of damage to be foreseeable
- an unusual sequence of events isn’t reasonably foreseeable and therefore too remote

Question 4

Donoghue v Stevenson

Answer 4

Test for duty

Established the neighbour principle

Question 5

Caparo v Dickman

Answer 5

Test for duty

Updated the neighbour principle with the Caparo three-part test

Question 6

Robinson v Chief Constable of West Yorkshire

Answer 6

Test for duty

Stated that Caparo test shall only be used in novel situations

Question 7

Kent v Griffiths

Answer 7

Duty of care

Damage was reasonably foreseeable - ambulance was late attending a patient

Question 8

Jolley v Sutton

Answer 8

Duty of care

‘It is reasonably foreseeable that a child will be injured by a boat left abandoned in a park’

Question 9

Bourhill v Young

Answer 9

Duty of care

There was no proximity as the claimant chose to view the accident

Question 10

McLoughlin v O’Brian

Answer 10

Duty of care

There was no proximity as the claimant had no choice but to view the accident involving her family, consequently suffering psychiatric loss

Question 11

Hill v Chief Constable of West Yorkshire

Answer 11

Duty of care

It was not fair, just or reasonable for the police to owe a duty of care in the detection of crime

Question 12

Sumner v Colborne

Answer 12

Duty of care

It’s not fair, just or reasonable to impose DoC on local authorities to road users for obstructions on land adjacent to highway

Question 13

Blyth v Birmingham Water Works

Answer 13

Breach of DoC - objective test

Established the objective test for breach of duty of care

Question 14

Bolam v Frien Hospital Management Committee

Answer 14

Breach of DoC - objective test

A professional will be judged by the standard of a reasonable person of that profession

Question 15

Mullin v Richards

Answer 15

Breach of DoC - objective test

A child will be judged by the standard of a reasonable child

Question 16

Nettleship v Weston

Answer 16

Breach of DoC - objective test

Trainees will be judged by the standard of a reasonably competent person

Question 17

Bolton v Stone

Answer 17

Breach of DoC - determining acting reasonably

The greater the risk, the more precautions the D will have to take for conduct to be reasonable

Question 18

Latimer v AEC

Answer 18

Breach of DoC - determining acting reasonably

The court will not expect the cost of precautions to outweigh the risk involved

Question 19

Paris v Stepney Borough Council

Answer 19

Breach of DoC - determining acting reasonably

The more serious the potential injury, the greater the level of care required by D to be reasonable

Question 20

Watt v Hertfordshire County Council

Answer 20

Breach of DoC - determining acting reasonably

Some risk may be acceptable if risk is undertaken is socially important

Question 21

Barnett v Chelsea Hospital

Answer 21

Damage

Damage must have been caused by breach of

Question 22

The Wagon Mound

Answer 22

Damage

Damage must be of a foreseeable type

Question 23

Hughes v Lord Advocate

Answer 23

Damage

The precise chain of events leading to the damage need not be foreseeable

Question 24

Smith v Leech Brain

Answer 24

Damage

It is not necessary for me extent of damage to be foreseeable

Question 25

Reeves v Commissioner of Police

Answer 25

Duty of care Police owed a DoC to prisoner to prevent him from committing suicide in custody

Question 26

Montgomery v Lanakshire Health Board

Answer 26

Duty of care If there’s a significant risk that may affect a reasonable patient’s decision, it is reasonably expected that the doctor inform them of this risk

Question 27

Bradford v Robison Rentals

Answer 27

Damage A claimant suffering harm of greater extent than what would be reasonably foreseen does not prevent liability where the type of harm would be reasonably forseen.

Question 28

Negligence plan

Answer 28

In order for negligence to be proven, there must a duty of care in place that has been breached and has caused ‘harm in fact’, creating a direct link between the breach and damage (causation). Tests for duty of care: Donoghue v Stevenson (original test) - established neighbour principle - Lord Atkin: ‘You must take reasonable care to…’ - Neighbour definition Caparo v Dickman (new test) - established 3-part Caparo test 1) Foreseeable (objective test) 2) Proximity - time, space, relationship 3) Fair, just and reasonable - policy test to prevent floodgates opening and unreasonable burdens on public operations - Reeves v Commissioner of Police, Montgomery v Lanakshire Health Board - Robinson v Chief Constable of West Yorkshire - Caparo test shall only be used in novel situations, where established principles do not provide an answer (no previous similar cases) - Established principles = the courts will consider the closest analogies in the existing law maintaining the coherence of law and avoiding inappropriate distinctions In light of these tests, the concept of duty of care is evaluated in terms of established principles, foreseeability and proximity. Also with application of neighbour principle. - Kent v Griffiths, Jolley v Sutton, Bourhill v Young, McLoughlin v O’Brian, Hill v Chief Constable of West Yorkshire, Sumner v Colborne Apply….. Breach of DoC: Objective test which comes from Blyth v Birmingham Water Works: ‘Omitting to do something a reasonable man would do, or doing something a reasonable man would not do’ - falling below requisite standard - An appropriate degree of knowledge is added to the reasonable person - A professional will be judged by the standard of a reasonable person of that profession - Bolam v Frien Management Committee - Doesn’t apply to trainees in any skill - they will be judged by the standard of a reasonable person - Nettleship v Weston - A child will be judged by the standard of a reasonable child - Mullin v Richards In determining whether the D acted reasonably, the court will consider 4 things to determine if D acted at the standard of a reasonable person: 1) Degree of risk involved - Bolton v Stone - The greater the risk factors (eg size, seriousness and likelihood), the more precautions the D will have to take 2) Cost of precautions - Latimer v AEC - The court won’t expect the cost of precautions to outweigh the risk involved. Therefore, D doesn’t have to take excessive measures to guard against minor risks, just reasonable precautions a reasonable person would take 3) Seriousness of injury - Paris v Stepney Borough Council - The more serious the potential magnitude of harm, the greater level of care required 4) Importance of the activity - eg social benefit - Watt v Hertfordshire County Council - Some risk may be acceptable if risk undertaken is socially important/beneficial Apply…… Damage (causation): The resulting damage must be: - caused by the breach - wouldn’t have happened ‘but for’ the breach - Barnett v Chelsea Hospital - not too remote from the breach, if the damage was a reasonable foreseeable type - The Wagon Mound The precise chain of events need not be foreseeable, nor is it necessary for the extent of damage to be foreseeable - Hughes v Lord Advocate, Smith v Leech Brain, Bradford v Robinson Rentals - an unusual sequence of events isn’t reasonably foreseeable and therefore too remote Apply…. Conclusion - if elements are satisfied, in that D did not act reasonably, they will be liable for the physical injury/damage to property.