Negligence Scenario Plans Flashcards
Negligence - Introduction
The law on negligence is common tort law, an act or failure to act due to the fault of the defendant which causes injury or damage to another person or his property. In Blyth V Birmingham Waterworks Co as ‘failing to do something which the reasonable person would do or doing something the reasonable person would not do’. The modern law on negligence originated from the case of Donoghue V Stevenson which established the neighbour principle, which states that a person must be mindful of any person who may be potentially injured by your act or omission.
Negligence - Duty of Care
In order to prove negligence, it must be established that the defendant owes a duty of care to the claimant. A court may establish a duty of care using the Robinson test, which means that if any precedent establishes a duty of care, this is followed, and if not Caparo is used. If there is no statute or case law which establishes a duty of care, the courts must use the Caparo Test. This was created in Caparo V Dickman, and establishes that the court must ask three questions in order to establish a duty of care. Was the damage reasonably foreseeable, as shown in Kent V Griffiths. Is there proximity of relationship, as shown in Bourhill V Young, meaning were the actions of the defendant closely related to the harm done. Finally, is it fair, just and reasonable to impose a duty, as shown in Hill V Chief Constable of West Yorks Police.
Negligence - Reasonable Person
In order to prove there was a breach of duty, it must be established that the defendant failed to reach the standard of a reasonable person, and if there were any risk factors involved which increased the duty owed. Firstly, the reasonable man is an objective test explained through the case of Blyth V Birmingham Waterworks Co, which establishes that a mere accident is not enough to establish negligence, it must be failing to do something a reasonable person would.
Negligence - Professionals/Learners/Children
*The way professionals are judged comes from the case of Bolam v Friern Barnet Hospital Management Committee, where the legal principle was decided. This principle asks whether the defendant’s conduct fall below the standard of the ordinary, competent, member of that profession and is there a substantial body of opinion within the profession that would support the course of action taken by the defendant. For learners, the case of Nettleship v Weston decided that learners should be judged at the standard of the competent driver as they have as much responsibility for those on the roads as the competent driver. As for children, the case of Mullin V Richards outlined that the standard is that of a reasonable person of the defendant’s age at the time of the accident.
Negligence - Special Characteristics
There are many risk factors which are taken into account to decide if the standard of care should be raised or lowered. The first risk factor must establish if the defendant is aware that the claimant has a special characteristic, and if they do, they should provide a higher standard of care. This was shown in Paris V Stepney where as the defendant was blind in one eye already, the cost and effort of providing these is small compared with the consequences of the risk.
Negligence - Size of Risk
The size of the risk is also taken into account, the reasonable person is not expected to take care of minute risks. This was shown in Bolton V Stone, where it was decided that because the size of the risk was so small, it was not expected for them to protect against it, and were not liable.
Negligence - Reasonable Precautions
The defendant is also not expected to take excessive precautions. Latimer V AEC Ltd shows that if there has been reasonable, and an appropriate level of precaution taken to mitigate risks, this is enough to establish that there has been no breach of duty.
Negligence - Unknown Risks
There can be no breach of duty if the risk is unknown, in Roe V Minister of Health, as the defendants were not aware of the risk of contamination, it couldn’t be established that they were liable for the harm done.
Negligence - Emergency
If there is an emergency, greater risks can be taken if done in order to respond quickly, this was shown in Watt V Hertfordshire County Council where a firefighter injured a claimant, however because this was done as a result of an emergency, there was no liability.
Negligence - Causation
The final step of establishing negligence is the damage caused. The courts use causation to do this. The first step is factual causation, which is decided using the but for test as shown in Barnett V Chelsea and Kensington Hospital Management Committee, the test asks if but for the defendant’s act or omission, the injury or damage would not have occurred. The next part of establishing causation is proving the damage is not too far removed, as shown in The Wagon Mound case, where it was shown that the injury or damage must be reasonably foreseeable, even though the precise way in which it happened is not. Finally, the victim must be taken as they are found, this is called the Eggshell skull rule, which means that even if there is a pre existing condition, the defendant is liable for all of the consequences as shown in Smith V Leech Brain Co
