Paper 1: Negligence Flashcards
what’s Judicial precedent?
A decision made by a judge in a case. other judges follow the previous decision when another case arises with the same or similar facts
how can courts avoid following previous precedent set?
1) more senior courts can be overrule a precedent set by a lower court
2) any judge can distinguish a case from a previous case of the facts are significantly different
what are the three elements of negligence?
1) defendant owed the claimant a duty of care
2) defendant breached the duty of care (failed to act)
3) defendant caused claimant to suffer foreseeable damage
Case for duty of care
Donoghue v Stevenson
The modern approach to duty of care -case
Robinson V chief constable of West Yorkshire
what is the modern approach of duty of care?
where a situation arises which is given by an existing rule - the court should follow the existing rule ( Donoghue v Stevenson)
where a situation arises which is very similar to an existing precedent- the court should follow the existing precedent
where novel situation arises- the court should use the Caparo V Dickman
what are the three steps to the Caparo v dickman test?
1) the damage (harm) to the claimant was reasonably for seeable ( kent v griffins)
2) there was a proximity between the claimant and the defendant
- time and space
vowels v Evans
-a relationship
Osman v Ferguson
3) it is fair, jusy and reasonable to impose a duty of care
vowels v Evans
Kent v Griffins
caparo v dickman
damage is reasonable foreseeable
Osman v Ferguson and Vowels v Evans
there was proximity between the claimant and defendant
relationship - Osman v Ferguson
time and space - Vowels and Evans
Vowels v Evans
it’s just, fair and reasonable to impose a duty of care on a private individual or business
when defendant is a public authority
a duty of care will not be imposed due to policy and circumstances
Circumstances - Robinson v chef constable of west Yorkshire
policy - Hill v chef constable of south Yorkshire
Robinson v chef constable of west Yorkshire
circumstance - public authority
Hill v chief constable South Yorkshire
policy - Public authority, will not impose a duty of care
policy reason against imposing a duty of care on a public authority
1) floodgate
allowing people to sue public authorities would open ‘floodgate’ to list of claims
2) defensive policing
public authority would be worried about being sued. This could lead to them becoming defensive in doing their jobs and lower there standard of work
3)resources
money would need to set aside funding legal cost. this money could be better spent doing the actual job
Blyth v Birmingham waterworks
Defines breach of duty as where the defendant does not do something a reasonable man would or would not do
nettleship v weston
inexperienced will be expected to meet the standard of the reasonable man
what two characteristics which vary the standard of care
1) if they are a child
2) they are a professional
what is the case for a child standard of care?
Mullins v richard
if the defendant is a child, will be compared so a child of the same age.
Standard of care is lowered than the reasonable man
what is the case for the professional standard of care?
Bolam v Friern Barnet HMC
the standard of care will be compared to another professional in the same job.
standard of care is higher than the the reasonable man.
what is the case for the average man for standard of care?
Wells v copper
compared to the reasonable man carrying out that activity. The standard of care is not different.
define stare decisis
“to stand by what has been decided”
what are the four risk factors and there cases?
1) the size of the risk
- Boton v stone
- Miller v Jackson
2) special characteristics of claimant
- Paris v Stepney brough council
3) practicability of precautions
- haley v London electricity board
- Latimer v AEC
4) Benefits of taking the risk
- watt v Mentfordshire county council
What does the cases , Boton v stones outline and what does Miller v Jackson outline?
Both establish the side of the risk
Boton v stone - if the risk of harm is small the reasonable man would take less care. standard of care expected is lower
Miller v Jackson - if the risk of harm is bigger the reasonable man would take more care. standard of care expected is higher.
what does the case Paris v Stepney brough council outline?
special characteristics of claimant
- if the claimant has special characteristics which put them in a greater danger then the reasonable man would take more care. Standard of care is higher
what do the cases Haley v London Electricity Board and Latimer v AEC outline?
practicability of precaution
-Haley v London Electricity Board
if it was quick/easy/cheap to take precautions to guard against the risk, the reasonable man would take.
standard of care is higher
Latimer v AEC
-the reasonable man will take precautions which are proportionate to the size of risk and seriousness of protental harm.
If defendant has done this they have meet the standard of care expected and will not have breached their duty of care.
What does the case Watt v Mentforshire County council outline
Benefits of taking the risk
if the risk involved a benefit to society the this outweighs the taking of the risk.
defendants is less likes to have breached there duty of care.
what are the two types of causation?
Factual causation and legal Causation
what are the tested used to find factual causation ?
The ‘but for’ test
what are the tested used to find legal causation ?
sufficiently connected
cases for factual causation
Barnett v Chelsea and kensington HMC
‘but for’ test
Case for legal causation
Knightly v Johns
chain of causation beteeen defendant breach and their damage is unbroken.
What are the three inverting acts?
1) action of a third party
2) claimants own actions
3) act of god
It’s only a intervening act if
1) it is sufficiently independent if defendants actions
2) it is serious enough to break the chain of causation
remoteness of dames cases
-the wagon mound
type of damage is reasonably foreseeable
-Hughes v Lord advocate
provide the type of hard claimant has suffered is foreseeable doesn’t matter how it happened
- Bradford v Robinson Rentals
provides the type of harm claimant had suffered is foreseeable it doesn’t matter if the harm suffered is rare or extreme
-smith v Leech brain
provide the this if harm claimant has suffered is foreseeable if doesn’t matter if it’s more serious due to a hidden weakness of claimant
the wagon mound
type of damage is reasonably foreseeable
Hughes v Lord advocate
provide the type of hard claimant has suffered is foreseeable doesn’t matter how it happened
Bradford V Robinson Rentals
provided the type of harm claimant had suffered is foreseeable it doesn’t matter if the harm suffered is rare or extreme
Smith v Leech Brain
provide the this if harm claimant has suffered is foreseeable if doesn’t matter if it’s more serious due to a hidden weakness of claimant
what does Res Ipsa Loquitur translate to?
“the facts speak for themselves”
when will Rea Ipsa Loquitur be applied? Case
Scott V London’s and st Kathrine Docks co
when will Rea Ipsa Loquitur be applied in what conditions?
1) the situation was under defendant’s control
2) the barn would not have happened if the defendant had taken proper care
3) there is no other obvious reason why harm occurred
what is the effect of Rea Ipsa Loquitur?
1) burden of proof shifts to defendant
2) defendant must then give an explanation why they were not negligent
3) if they cannot then they will be found liable
The law reform ( contributory negligence) act 1954
defined contributory negligence as ?
defined:
where claimant contributes to their own damage/injuries/loss
name the two cases for contributory negligence
1) Sawyer V Harrow urban district Council
- reduce claimants compensation
2) Jayesh v IMI ( kynoch) ltd
court decides it’s 100% the claimant fault and no compensation will be given
Sawyer V Harrow urban district
where the claimant contributes to their own damage/loss/injuries the court will reduce the claimants.
Jayesh v IMI ( kynoch) ltd
A court can decide that the claimant is responsible for 100% of their own damage/interest/losses if so they will receive no compensation at all
