Paper 2.7 - Negligence

Question 1

What is tort law and what is its aim?

Answer 1

Tort law is when a person wrongs another; its aim is to compensate reasonable claimants.

Question 2

What is negligence?

Answer 2

Negligence is an action or omission that causes injury or damage to another person or their property.

Question 3

What are the three elements of negligence?

Answer 3

D owes C a duty of care.
D breaches this duty.
Breach causes foreseeable damage / injury (causation).

Question 4

When testing whether D owes C a duty of care, what are the two tests a judge could do?

Answer 4

The Neighbour Test / Principle.
The Caparo Test.

Question 5

What is the Neighbour Principle and what case created this?

Answer 5

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee injury to your neighbour.’
Donoghue vs Stevens
Dead snail found in C’s beer; however, the drink was purchased as a gift by her friend. It was decided the manufacturer was liable.

Question 6

When did the Caparo test replace the Neighbour Principle?

Answer 6

1990.

Question 7

What are the three stages of the Caparo test?

Answer 7

Was damage reasonably foreseeable?
Is there significant proximity between C & d?
Is it fair, just and reasonable to impose a duty of care?

Question 8

According to Caparo, damage must be reasonably foreseeable. What is the case example of this?

Answer 8

Kent (v Griffiths) 2000
Ambulance took a very long time to deliver C to hospital during asthma attack for no reason, causing respiratory arrest; hospital were liable to compensation as the damage to C were foreseeable.

Question 9

What three elements make up proximity under Caparo?

Answer 9

Time, space or relationship.

Question 10

According to Caparo, the relationship between C & d must be proximate. What is the case example for this?

Answer 10

Bourhill (1943)
C, pregnant, hears the sound of an accident and searches for the scene. When she finds it, she is so shocked that her baby dies. She sues a relative of the dead motorcyclist. However, there was no proximity between C & d so there was no liability.
OR
McLoughlin (1982)
C’s husband and children are killed in a serious car accident due to the negligence of a lorry driver. She suffered from shock and depression in the immediate aftermath and sues the lorry driver. D is related to C by killing her family; therefore he was liable.

Question 11

According to Caparo, the duty of care must be fair, just and reasonable (FJR) to enforce. What is the case example of this?

Answer 11

Hill (1989)
C’s daughter is killed by the Yorkshire Ripper, a serial killer police were aware of and could have arrested before the murder. However, it was decided that the police weren’t liable as it would not be FJR to enforce a duty of care on the police.
OR
Robinson (2018)
C was injured by police who were chasing after a drug dealer. Supreme Court overruled Hill and decided that it was FJR to enforce a duty of care on police.

Question 12

Aside from allowing lawsuits against police, what other major legal point did Robinson establish?

Answer 12

Caparo test was not needed when there was already an established duty of care.

Question 13

In Caparo, C has to show that the duty of care has been breached. What is the standard for this proof?

Answer 13

Objective; eg a reasonable person’s point of view.
Would a reasonable —– have acted in the same way?

Question 14

In element two of negligence, C has to show that the duty of care has been breached by an objective standard. What is the case example of this?

Answer 14

Blythe (1856)
C sued d, who installed a faulty water plug. Since d is compared to a reasonable tradesperson, they were found liable.

Question 15

In element two of negligence, professionals are held to a different standard of care than a normal person. What is the case example of this?

Answer 15

Bolam (1957)
C was receiving shock treatment for an illness. He signed a consent form that failed to mention the risk of injury and broke his pelvis because the doctors did not give him any relaxant meds. However, since the meds were only recommended, the doctor acted in a reasonable way; not liable.

Question 16

In element two of negligence, learners are held to a different standard of care than a normal person. What is the case example for this?

Answer 16

Nettleship (1971)
D, a learner driver, injures C with her dangerous driving. She was liable, as learners are held to the standard of fully qualified individuals.

Question 17

In element two of negligence, children are held to a different standard of care than a normal person. What is the case example for this?

Answer 17

Mullins (1998)
D, a child, snaps a ruler into C’s eye. D was not liable because children are held to the standard of other children.

Question 18

What are the four risk factors that fall under Caparo element 2?

Answer 18

Special characteristics.
Adequate precautions.
Public benefit.
Size of risk.

Question 19

In negligence, in the event that d is not aware of a risk that causes harm, are they liable? What case decides this?

Answer 19

No.
Roe (1954)
Due to lack of scientific knowledge at the time, cleaning liquid seeped into C’s anaesthetic, paralysing him. D was not liable due to lack of knowledge of the risk.

Question 20

What is a special characteristics risk factor and what is the case example?

Answer 20

Special characteristics is when a c requires more care due to their condition eg injury, illness.
Paris (1951)
C, blind in one eye, sustains damage to his working eye while working due to a lack of protective equipment. Employer should have taken greater care due to his condition and was liable to more damages.

Question 21

What is an adequate precautions risk factor and what is the case example of this?

Answer 21

The d has put adequate precautions in place to counteract the danger, nullifying their liability.
Latimer (1953)
Factory floods with oil and water, making the floor slippery. Owner puts sawdust on the ground to reduce the slip and workers continue. Worker slips and is injured, however there is no breach due to sawdust.

Question 22

What is a public benefit risk factor and what is the case example for this?

Answer 22

There is great public benefit that makes d’s action or omission worth the risk of injury.
Watt (1954)
C, a fire-fighter, is sent to a scene with an unsecured jack on his personal truck as no fire engines were available. The jack falls off and hurts C, however the fire service were not liable due to the urgency of getting to the scene.

Question 23

What is a size of risk risk factor and what is the case example of this?

Answer 23

The size of risk is already so small, it requires no further reduction to warrant reaching their duty of care.
Bolton (1951)
D hits a cricket ball over his club’s fence and hits a lady. The ball only escaped the fence 6 times in the last 30 years. The miniscule size of risk meant D was not liable for injuries.

Question 24

What are the two requirements of the final element of negligence?

Answer 24

Damage must be caused.
Damage must not be too remote.

Question 25

What is factual causation in terms of negligence and what is the case example for it?

Answer 25

But for d’s actions or omissions, the end result would not have happened.
Barnett (1969)
C is poisoned by another man and goes to hospital. Hospital send him home, and he dies later. However, there was nothing the hospital could have done so they were not the factual cause for C’s death.

Question 26

What is remoteness of damage in terms of negligence and what is the case example for it?

Answer 26

Damage must be reasonably foreseeable.
Wagon Mound (1961)
Fuel oil was spilled into Sydney Harbour and sparks from a welder’s wharf caused it to ignite, burning the wharf. The damages were seen as too remote and the oil company were not liable.

Question 27

In terms of negligence, the type of injury must be foreseeable. What is the case example of this?

Answer 27

Hughes (1967)
Post Office workers left a manhole unattended and a boy climbed in to explore. He gets exploded by a paraffin lamp; liable to damages as even though the explosion was unforeseeable the burns were not.

Question 28

In terms of negligence, what is the thin skull rule and what is the case example of this?

Answer 28

D is still liable for C’s injuries even if their pre-existing condition triggers it.
Smith (1962)
C, an employee, is burnt on the lip due to bosses’ negligence, triggering his cancerous condition, later dying. D was liable for his death.

Question 29

What is the aim of compensatory damages?

Answer 29

To put C into the position they were before the tort occurred.

Question 30

What act dictates how damages are governed?

Answer 30

The Damages Act 1996.

Question 31

What are the main three forms of damages?

Answer 31

Pecuniary / Non-pecuniary.
Special / General.
Lump sum / Structured settlement.

Question 32

What are pecuniary and non-pecuniary damages? Give an example of each.

Answer 32

Pecuniary: loss of money from tort eg lost wages.
Non-pecuniary: emotional suffering eg loss of enjoyment.

Question 33

What are special and general damages? Give an example of each.

Answer 33

Special: damages given preceding the trial date eg loss of earnings.
General; damages calculated for after the trial date eg future loss of earnings.

Question 34

What is a lump sum and what is a structured settlement?

Answer 34

Lump sum: damages are received at once after trial.
Structured settlement: paid in regular intervals.

Question 35

What is an injunction in terms of damages?

Answer 35

A court order to stop behaviour.

Question 36

What is mitigation of loss in terms of damages?

Answer 36

C must show they are attempting to live a normal life (eg go to hospital appointments) to claim full damages.

Question 37

What are the two defences to negligence claims?

Answer 37

Contributory negligence.
Consent (Volenti).

Question 38

What is contributory negligence, what happens when it is successful and what act governs it?

Answer 38

A partial defence from negligence claims; argues that C is partially responsible for their damage. Judge will deduct a percentage off of D’s damages. Governed by the The Law Reform (Contributory Negligence) Act 1945.

Question 39

What is the case example of contributory negligence?

Answer 39

Froom (1976)
C wasn’t wearing a seatbelt and D crashed their car. Contributory negligence made C’s damages were reduced by 25%.

Question 40

What is consent (volenti) and what happens when it is successful?

Answer 40

Consent is a full defence from negligence that argues that C accepted the risk of injury or damage; full defence means that D is not liable.

Question 41

What is the case example for consent (volenti)?

Answer 41

Morris (1991)
C & d go on an airplane ride while drunk. C willingly got on the plane. D crashed the plane. C sued D’s relatives but D was not liable due to consent.

Question 42

What are three evaluation points for duty of care (element one of neglience)?

Answer 42

Impact of cases (Donoghue, Caparo, Robinson).
Number of duties - as society develops there will be more duties of care.
Proximity - not objective / what is too close? (Bourhill and McLoughlin).

Question 43

What are three evaluation points for breaching a duty of care (element two of neglience)?

Answer 43

Learners - Unfair to judge learners harshly (Nettleship) but necessary.
Children - Fair to judge children leniently (Mullins) but no justice for V.
Risk factors - (Size of risk) Fair to judge D leniently for reducing risk but no justice for V.

Question 44

What are three evaluation points for causation (element three of neglience)?

Answer 44

Reasonably foreseeable is vague. (Wagon Mound)
Is thin-shell skull rule fair on D? Unreasonably foreseeable. (Smith)
Difficult to establish factual causation (Barnett - hospital weren’t held accountable for improper medical care).

Question 45

What are three evaluation points for damages?

Answer 45

Cost - If C loses they lose legal fees and may be crippled.
Delays - C might not receive sufficient funds to make it to trial date.
Remedies - Non-pecuniary damages are difficult to calculate.