PAPER 2: Section B - Liability in Negligence

Question 1

What 4 things needs to be shown in order for someone to be considered negligent?

Answer 1

1) The defendant owed a duty of care
2) The defendant breached that duty of care
3) The claimant suffered damage as a result of the breach via causation
4) The damage suffered was not too remote

Question 2

What is negligence? (straight definition)

Answer 2

A tort or civil wrong

Question 3

What is negligence according to a CASE?

Answer 3

Blyth v Birmingham Waterworkss

Negligence is the omission to do something which a reasonable person would do, or an ac which a reasonable person wouldn’t do.

Question 4

What is a duty of care?

Answer 4

There is an obligation upon the defendant to take proper care to avoid causing injury to the claimant.

Question 5

What is the neighbour principle + relevant CASE that helped formed it?

Answer 5

A single test to decide when a person owed a duty of care to another.

DONOHUGE V STEVENSON - Lord Atkin ‘You must take reasonable care to avoid acts / omissions which you can reasonably foresee would be likely to injure your neighbour. Who is my neighbour in tort law? Persons who are very close and directly affected by my acts’

Question 6

What does the Caparo case define a duty of care as? List the three tests

Answer 6

Caparo says for someone to have a duty of care, they must three tests:

1) have a reasonable foresight of harm,
2) a sufficient proximity of relationship and
3) was it fair, just and reasonable to impose a duty.

Question 7

What is Test 1 and the relevant CASE?

(HINT: Outside of London and starts with K, ambulance)

Answer 7

Test One is Foreseeability
- It’s an objective test on what would the reasonable person would do.

KENT V Griffiths - Court decided it was foreseeable that an injured person waiting for may have more severe injuries due to a time delay. Claimant won as there’s a duty of care owed by the emergency services.

Question 8

What is Test 2 and the relevant CASES?

HINT: B _ _ _ _ _ _ _ _ vsopposite of old, McLoughin

Answer 8

Test 2 is Proximity

• It means how close the claimant and defendant are either by space, time or relationship.
• Usually, the proximity test is met as the claiment is usually part of the accident, so they would be there. However, an equivalent is a person who learns about this accident afterwards and has a psychiatric injury as they’re ‘close’ to the victim via a relationship.

BOURHILL v YOUNG - Claimant wasn’t owed a duty of care as they were in a safe place and weren’t there at the time of the accident, so there was no proximity in terms of space. It was not foreseeable that the accident would have cause C=the claimant a miscarriage, so therefore C lost. (first point)

McLoughlin v O’Brien - Although C wasn’t present at the accident, seeing her injured husband and family which was caused by D would foreseeably cause some level of psychiatric pain. The proximity of the relationship was the deciding factor in establishing duty of care so C won.

Question 9

What is Test 3 and the relevant CASE?

HINT : Yorkshire ripper, hill

Answer 9

Test 3 - Reasonableness
Is it fair, just an reasonable to impose a duty of care?

HILL CASE
No duty of care eas owed to Miss Hill (mother of final Ripper victim) as the police did owe this case as they weren’t to know that Miss Hill would be the final victim, so it wasn’t reasonable. C lost.

Question 10

What is a breach of duty

Answer 10

A breach of duty is The fault element of negligence. The defedenant must have been careless and done an act or omission that fell below the standard oc care expected of him.

For example, if a defendant is a doctor snd their patient has died, it doesn’t mean they were negligent (unexpected cardiac arrest, for example).

Question 11

How How is the breach of duty applied to learners

Answer 11

The standard of care required is described as a general standard. You do not have to reach the standard of a really good doctor just an average doctor.

Question 12

What does Nettleship V Weston say about general standard of care?

Answer 12

D was a learner driver and crashed, injuring the instructor (C).
Held: D was liable despite her inexperience. The standard of care required of every UK motorist is the same of that of a reasonably competent driver / person.

Question 13

What two cases showed the evolution of how professionals are charged under neglience? (HINT: 🥣am // Aria M _ _ _ _ _ _ _ _ _ _ )

Answer 13

Bolam - Around 1957, courts mostly favoured the doctor’s side in court cases. D didn’t give relaxants to his patient who was prone to seizures (C). Bolam didn’t receive informed consent about the risk of harm he’d face, resulting in him getting fractured bones due to the altitude of the seizures. D was acquitted as the methods used were approved of by a responsible member of the medical profession - there was no breach/.

Montgomery - THIS CASE SUCCEDEED BOLAM IN 2015! D suffered complications during birth, resulting in her song being born with cerebral palsy. She claimed that the doctor failed to disclose the risks and obtain informed consent from her. The court WAS INVITED TO DEPART FROM PRECEDENT and reconsider the duty of a doctor towards a patient in relation to advice about treatment

It was decided that the doctor was under a duty to disclose the risk of a major emergency which involves significant risks to the mother’s health. The doctor should have explained to the claimant why it was believed a vaginal delivery was medically preferable to a C section. Patients should be treated as adults who are capable of understanding medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives and living with the consequences of their choices.

The Mortgomry decision has modernised the law on consent and introduced an update on UK law.

Question 14

What does Mullins v Richards say about children in negligence? (HINT: 📏, blind)

Answer 14

Facts: 15 year old girl blinded classmate with a ruler
Held that a reasonable 15 year old would not have foreseen this risk of harm so there was no liability. In fact, nobody would foresee someone becoming blind by playing with rulers.

Question 15

What tests are done to determine breach of duty?

Answer 15

• Degree of probability that harm will be done
• Magnitude of likely harm
• Cost and practicality of preventing the risk
• Potential benefits of the risk

Question 16

How will the court consider risk factors? What is the relevant CASE?

Answer 16

The court will consider the likelihood of harm occurring. The greater the risk of harm, the greater the precautions that will need to be taken.
Bolton v Stone - It was decided that the defendants weren’t negligent as the likilihood of the risk was very low, and people can’t be expected to prevent all accidents. That’s why they’re called accidents!

If the ball hit 1 out of 100 people, the risk is low and not enough to claim negligence.

Question 17

How will the court consider the risk factor of the DEGREE THAT HARM WILL BE DONE? What is the relevant CASE? (

Answer 17

The court will consider the likelihood of harm occurring. The greater the risk of harm, the greater the precautions that will need to be taken.
Bolton v Stone - It was decided that the defendants weren’t negligent as the likilihood of the risk was very low, and people can’t be expected to prevent all accidents. That’s why they’re called accidents!

If the ball hit 1 out of 100 people, the risk is low and not enough to claim negligence.

Question 18

How will the court consider the risk factor of the MAGNITUDE OF LIKELY HARM? What is the relevant CASE? (

Answer 18

Sometimes, the risk of harm may be low but this will be counterbalanced by the severity of harm to a particularly vulnerable claimant.

Paris v Stepney Borough Council - HELD: There was a greater risk of harm as the claimant was blind. There should be more precautional than normal.

Question 19

How will the court consider the risk factor of the COST AND PRACTICALITY OF PREVENTING THE RISK? What is the relevant CASE? (hint: name of grammar school)

Answer 19

The owner

Question 20

UNFINISHED
How will the court consider the risk factor of the COST AND PRACTICALITY OF PREVENTING THE RISK? What is the relevant CASE? (hint: name of grammar school)

Answer 20

Latimer v AEC Ltd -
The defendant Mr Latimer, worked in a factory owned by the defendants, AEC Ltd. The factory had become flooded due to adverse weather, which caused the floor to become very slippery. In response, the defendants mopped up, put out warning signs for a slippery floor and placed sawdust on the floor to make the area as safe as possible for the workers. The complainant was working on nightshift after the flooding and when he was moving a heavy barrel, the slipperiness of the floor caused him to fall. He fell on his back and the barrel proceeded to crush his ankle.
Issues
The trial judge had held that the defendants were in breach of their common law duty of care and were liable for damages. The defendants appealed this decision. The issues of this case surrounded the seriousness of the factory conditions and address the question; if all possible safety measures had been completed to protect workers, should the defendants have closed the factory down.

Decision/Outcome
The appeal was allowed. It was held that the defendants had not been negligent and they had taken all reasonable precautions that could have taken to minimise any possibility of risk to their employees. Thus, there was no breach of their duty of care and it was not reasonable to shut down the entire factory. This case states that an employer only had to take steps to minimise risk that a reasonable person would do in the circumstances

Question 21

How will the court consider the risk factor of the POTENTIAL BENEFITS OF THE RISK? What is the relevant CASE?

Answer 21

Watt v Hetfordshiore County Council -

Question 22

were the risks known about at the time of the accident?

Answer 22

roe v minister of health