Negligence Revision Notes

Question 1

Negligence

Answer 1

To establish negligence the claimant has to prove on the balance of probability that:
1. The defendant owed them a duty of care
2. The defendant breached that duty of care
3. That breached caused the harm/injury and
4. It was not too remote a consequence to
compensate

Question 2

Duty of care

Answer 2

• Duty has its origins in Donoghue v Stevenson
• Reasonable care to avoid acts or omissions which you can foresee would be likely to injure your neighbour – ‘the neighbour principle
• Today the test for duty laid down in Caparo Industries v Dickman – Caparo Test

Question 3

Caparo Test

Answer 3

• Was the damage reasonably foreseeable? – Bourhill v Young is a good case to cite here
• Was their a relationship of proximity between the claimant and defendant? ( proximity suggests physical closeness but in law it has a wider meaning – about whether a sufficient relationship can be found) good case here is Hill v CC of West Yorkshire
• Is it fair, just and reasonable to impose a duty of care?
• Apply to facts in scenario

Question 4

Breach

Answer 4

• Once duty established – decided if defendant has breached that duty
• Done by looking at the standard of care and assessing whether the defendant fell below that standard
• Blyth v Birmingham Waterworks gave us the standard expected – would the reasonable man, the man on the ‘Clapham Omnibus’ do as the defendant did?
• If the answer is yes then there will be no breach
• If no, then need to decide whether breach caused the injury/damage
• If a first aider then assess whether they have fallen below the standard expected of a reasonable first aider
• If a professional – cannot use reasonable man test because reasonable man would not have the professional’s skill – need to apply Bolam if applicable

Question 5

Causation

Answer 5

• To establish causation court will look at causation in fact and causation in law
• Causation in fact = filter. Established by the ‘but for’ test – Barnett v Chelsea and -Kensington HMC – ‘but for the defendants actions the damage or injury will not have occurred
• Apply

Question 6

Causation in law

Answer 6

• If ‘but for’ test is satisfied then look at causation in law
• Is there a novus actus interveniens?
• Apply if applicable
• Is the damage/ injury reasonably foreseeable – Wagon Mound No 2
• Is it the same type of damage /injury foreseeable?
• Does the ‘egg skull’ principle apply?

Question 7

Are there any defences available

Answer 7

• Volenti
• Contributory Negligence under the Law Reform (Contributory Negligence) Act 1945
• Ex turpi causa - illegality

Question 8

Look at the circumstances when applying

Answer 8

• Is there a legal duty of care – easy in most cases
• Look at omissions – is there a duty to help someone if they have been injured?
• Look at assumption of responsibility and the relevant case law i.e. Capital & Counties plc v Hampshire County Council
• Apply