Negligence [Tort Law] Flashcards
DOC Part 1:
The Neighbour Principle
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’.
DOC Part 2:
Robinson v Chief Constable of West Yorkshire
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.
DOC Part 3:
Caparo Test pt1 (reasonably foreseeable)
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)
DOC Part 3:
Caparo Test pt2 (proximity)
The second asks whether the relationship between D and C was close enough as to establish legal/physical proximity.
(Watson v BBBC)
DOC Part 3:
Caparo Test pt3 (fair, just, reasonable)
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.
Breach Part 1:
Blyth
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.
Breach Part 1:
Ordinary Person
An ordinary person will be compared to another ordinary person of the same skill level (Wells v Cooper).
Breach Part 1:
Professionals
Professionals will be compared to other professionals (Bolam v Frier Barnett Hospital).
Breach Part 1:
Learners
Learners will be compared to the reasonably competent, qualified (Nettleship v Weston).
Breach Part 1:
Young People
Young people (under-18s) will be compared to another of the same age (Mullins v Richards).
Breach Part 2:
Special Characteristics of C
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).
Breach Part 2:
Size
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).
Breach Part 2:
Known Risk
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).
Breach Part 2:
Practical Precautions
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).
Breach Part 2:
Benefits
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).
Damage Part 1: Factual Causation
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).
Damage Part 1: Legal Causation
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).
Damage Part 2: (Remoteness) Reasonably Foreseeable
The first asks, was harm/damage reasonably foreseeable to the reasonable person? (The Wagon Mound Case)
Damage Part 2: (Remoteness) Type of Harm
The next asks whether the type of harm/damage was reasonably foreseeable (Bradford v Robinson Rentals).
Breach Part 2: Egg Shell Skull Rule
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).
