Negligence [Tort Law]

Question 1

DOC Part 1:

The Neighbour Principle

Answer 1

The first stage uses the ‘neighbour principle’ defined in Donoghue v Stevenson by Lord Atkin as ‘one must take steps to avoid acts or omissions that one can foresee may injure your neighbour’. A neighbour is someone affected by your actions and so one must ‘have them in your contemplation’.

Question 2

DOC Part 2:

Robinson v Chief Constable of West Yorkshire

Answer 2

Recently, in [Robinson] two routes were created when establishing a DOC. The first says that if the DOC owed by the defendant has already been established in past precedent, then the Caparo Test does not need to be discussed. The second says that if the DOC is not already established, then the Caparo Tests must be considered.

Question 3

DOC Part 3:

Caparo Test pt1 (reasonably foreseeable)

Answer 3

The 3-part Caparo Test was established in Caparo v Dickman. The first part asks whether someone in D’s position could reasonably foresee damage/harm to someone in C’s position.

(Kent v Griffiths)

Question 4

DOC Part 3:

Caparo Test pt2 (proximity)

Answer 4

The second asks whether the relationship between D and C was close enough as to establish legal/physical proximity.

(Watson v BBBC)

Question 5

DOC Part 3:

Caparo Test pt3 (fair, just, reasonable)

Answer 5

The third asks whether it is fair just and reasonable to impose a DOC onto the DOC. If the D is part of a public authority (police officers, paramedics, fire fighters e.t.c.) then the court is reluctant to impose a DOC.

Question 6

Breach Part 1:

Blyth

Answer 6

The principle of the breach of a DOC came from Blyth v Birmingham Water Works and it says that the reasonable person is the ordinary person doing the same task reasonably competently. If D does something that this person would not have done, then they have breached their DOC.

Question 7

Breach Part 1:

Ordinary Person

Answer 7

An ordinary person will be compared to another ordinary person of the same skill level (Wells v Cooper).

Question 8

Breach Part 1:

Professionals

Answer 8

Professionals will be compared to other professionals (Bolam v Frier Barnett Hospital).

Question 9

Breach Part 1:

Learners

Answer 9

Learners will be compared to the reasonably competent, qualified (Nettleship v Weston).

Question 10

Breach Part 1:

Young People

Answer 10

Young people (under-18s) will be compared to another of the same age (Mullins v Richards).

Question 11

Breach Part 2:

Special Characteristics of C

Answer 11

The first is any special characteristics of C, which entail anything that will cause the consequences of harm to the C greater than to others (Paris v Stepney Borough Council).

Question 12

Breach Part 2:

Size

Answer 12

The second is the size of the risk, with the higher the risk an act/omission carries, the higher the SOC owed (Bolton v Stone).

Question 13

Breach Part 2:

Known Risk

Answer 13

The third is a known risk which means that if the risks are completely unknown, then there can be no DOC (Roe v Minister of Health).

Question 14

Breach Part 2:

Practical Precautions

Answer 14

The fourth are practical precautions meaning the court will consider the cost and effort of taking practical precautions to minimise the risk (Latimer v AEC).

Question 15

Breach Part 2:

Benefits

Answer 15

The last are potential benefits to the risk which means that in an emergency the courts can accept a lower SOC (Watt v Hertfordshire County Council).

Question 16

Damage Part 1: Factual Causation

Answer 16

Factual causation entails the use of the ‘but for’ test: ‘but for’ [the defendant] [doing what they did], would [claimant] have suffered [harm/damage]? No, therefore factual causation is satisfied (Barnett v Chelsea Kensington Hospital).

Question 17

Damage Part 1: Legal Causation

Answer 17

Legal Causation must also be discussed. This entails the presence of novus actus interveniens (new intervening acts). These can be done either by the claimant, a third party or by nature (Smith v Littlewoods).

Question 18

Damage Part 2: (Remoteness) Reasonably Foreseeable

Answer 18

The first asks, was harm/damage reasonably foreseeable to the reasonable person? (The Wagon Mound Case)

Question 19

Damage Part 2: (Remoteness) Type of Harm

Answer 19

The next asks whether the type of harm/damage was reasonably foreseeable (Bradford v Robinson Rentals).

Question 20

Breach Part 2: Egg Shell Skull Rule

Answer 20

Since the claimant [has a pre-existing disposition] the Egg Shell Skull Rule must be discussed, which says that liability will not be changed if the claimant has a pre-existing condition that makes their injuries worse (Smith v Leech Brain).