Section B- Negligence Flashcards
explanation of negligence
baron alderson defined as failing to do something which the reasonable person would do or doing something which the reasonable person would not do. come from act or omission and applies to damage to people or property
c has to prove D cause harm or damage.
what does the balance of probabilities mean
who the courts are more certain should be responsible
test for establishing a negligence claim
- owe c a DOC
- BOD
- causes injury or damage
what is tort
a civil wrong that unfairly results in loss or harm to another
when is the caparo test used
only needed in novel situations (brand new)
what are the 3 stepts of the caparo test and cases
- is the damage or harm reasoably forseeable
kent v griffiths- asthma attack ambulance not come in time - is there a close and proximate relationship
bourhill v young- still born after traumatic rxperince- failed - fair just and reasonable to impose a duty considering public policy (Protecting public)
hill v CCWY killed by yorkshire ripper- non liable police. no DOC to GP
What are the 8 established duties in the test of Robinson
Doctors- patients
Manufacturers- consumers
Employers-employees
Chef/caterer- consumer
Driver- pedestrians
Solicitors/barristers- clients
Police-public
Teacher- student
When is the Robinson test used
Non novel case
What happens in the case of Robinson v CCWY
Woman struck down by criminal and 2 police chasing them fell on her
Held: DOC owed from police
What case is used for doctors- patients
Bolam v friern
What happens in bolam v friern
Undergoing electro convulsive therapy- D gave no relaxant and C suffered injuries
Held: no breach of duty- D acted in accordance with practice accepted- low risk fracture
What is the case used for manufacturers- consumers
Donoghue v Stevenson
What happens in donhouge v Stevenson
Snail in ginger beer
Held; manufacturer owed DOC
What is the case used for employers- employees
Paris v Stepney borough council
What happened in Paris v Stepney borough council
Only had sight in one eye and whilst working metal damaged the eye making him fully blind
Held- BOD- should have provided goggles
What act is used for chef/caterer- consumers
Food safety act
What does the food safety act suggest
Chefs or caterers owe a DOC to anyone who will consume their food
What is the case used for drivers-pedestrians
Nettleship v western
What does nettleship v western include
Learner driver taking lessons from friend- got into an accident leading in fracture to C
Held- liable- same standard as qualified driver
What case is used for solicitors/barristers- clients
Hall v Simon
What happens in hall v Simon
Appeals against solicitors
Held barristers and solicitors ow doc to clients
What case is used for police-public
Robinson v CCWY
What case is used for teacher-student
Carmarthenshire county council v Lewis
What happens in Carmarthenshire county council v Lewis
Nursery child ran onto busy road, husband swerved to avoid and hit a tree and died
Held: nursery held doc to ensure their children don’t escape onto the road
What’s positive about the Robinson test
Clear concise criteria
Limits judicial creativity by applying what’s already been said
However judges being restricted limits ‘just outcomes’
About breach of duty
Once a DOC has been established it’s up to the claimant to decide if there has been a BOD , this is an objective test and is judged to the standard of the reasonable person performing that act e.g Vaughan v menlove- didn’t take precautions of fire
What specific categories are in addition to the reasonable man
Professional standard- RP
Learners- RL
Children and young people- RC
What is professional standards
They are judges to the profession as a whole seen in bolam v friern
Higher standard than the reasonable man- reasonable professional
Find a BOD if the two points are applicable 1. Fallen below standard of a competent member of that profession. 2.substantial body of opinion of that profession who would not support the course of action taken by D.
Montgomery v Lanarkshire health board
What happens in Montgomery v Laarkashire health board
Wanted to sue hospital when son born with condition and no risks were disclosed to her
Held- departed from Bolam- owed a DOC to disclose anything serious during childbirth which could effect them
Evaluation of professional standards
Fair that D is judges against what is common practice at the know;edge of the time especially in medical and scientific areas that can change
Following Montgomery even if the DR doesn’t cause the risk it doesn’t mean the DR can’t be negligent, didn’t disclose the risk. Ensures C is protected and dR should give greater care which upholds public policy.
Changed the way DRs are tried- provide clarity around childbirth
What are learners in BOD and the case
Learners are judged of the competent and more experiences person
Nettleship v western- injured passenger
Is judging someone to the standard of the reasonable learner fair
-learning shouldn’t be a defence and therefore upholds public policy and compensates the victim fairly for their damage
However may be unreasonable as they have only just began learning the skill
What is children and young people in BOD
Judged to the standard of the reasonable persons age at the time of the incident established in mullin v Richard’s
What happens in mullin v Richard’s
15 year old girls playing with rulers and a ruler shatters and makes a girl blind in one eye
Held: wasn’t liable as she didn’t understand her friend could become blind because she was a child
What are the risk factors
Does c have any special characteristics?
What is the size of the risk?
Were the risks known at the time?
Is there a benefit to taking the risk?
Have all the appropriate precautions been taken?
What if the C has special characteristics (risk factors) and case
Take the person how you find them, pay for consequences even if the D didn’t intend them because they were not aware of special characteristics.
Paris v Stepney borough council- c blind in one eye- not provided goggles- fully blind- BOD
What was the outcome of Paris v Stepney borough council made to encourage
Encourage employers to take greater care of their employees, giving goggles was a very small expense compared to the consequences of to- by using special characteristics- fairness in law
Could encourage judicial creativity as there is no definition for special characteristics so judge has to interpret
What does the size of risk include (risk factors) and cases
-if small risk, D will not need to take as great a precaution- Bolton v stone
-if higher a DOC is owed- haley v London electricity board
What happens in Bolton v stone (size of risk- small)
There was no BOD as the risk of harm was low and had taken precautions of higher fence so the risk of getting hit by the ball was small
What happens in Hayley v London electricity board (large size of risk)
Blind man fell in trench and became deaf too
D was in breach as size of risk was high as there was no greater precautions
Have all the appropriate precautions been taken- about and case
The court will consider the risk involved and whether D has taken adequate precautions to eliminate the risk
Latimer v AEC ltd
What happens in Latimer v AEC ltd
After a flooding the D has put up warning signs, mopped flaws and put sawdust down-C slipped
Held- no BOD they only had to take reasonable precautions to minimise the risk which they had done
disadvantage of Latimer v AEC for determining if precautions have been taken
It’s from 1953 and an argument suggests the decision may be a different one today and sawdust today is unlikely to be satisfactory with regulations today and sawdust is not effective
We’re the risks known at the time- case
If the risk of harm isn’t known there is no breach
Roe v minister of health-
What happened in roe v minister of health
2 cs became permanently paralysed after anaesthetic became cross contaminated with steriliser fluid.
Held: no BOD as risk wasn’t foreseeable as an unknown risk as stored correctly
How could the decision of roe v minister of health be seen as harsh
Claimant was left without compensation which is unfair as paralysed
C will need constant care due to severity of issues which can be costly and unaffordable
However no amount of Money can be placed on the loss of living independently
Is there a benefit to taking the risk- about and case
In an emergency greater risks can be taken and a lower standard of care is accep[tabkle however it will still be considered whether the DOC is fair and reasonable
Courts accept D might have acted differently in hindsight- quick decisions not have realised the circumstances
Watt v heterfodshire county council
What happens in watt v Hertfordshire county council
Fire fighter injuries when a jack fell onto him on his way to. A scene
Held: no BOD as Ds conduct was in order to save a life which outweighed taking greater precautions
what factors are in damage for the C to prove that damage was caused by a BOD
causation in fact, causation in law, novus actus interveniens, eggshell conditions
what is causation in fact and the case (damage)
‘but for’ Ds action harm would not have arisen.
barnett v chelsea and kensington HMC
what happened in the case of barnett v chelsea and kensington HMC
doctor failed to examine a man who came in complaining of stomach pains and later died of poising
held: hospital was not liable ‘but for’ the doctors examination he would have died anyway, did not cause his death.
what is a problem with the ‘but for’ test in CIF
only works effectively and easily where there is one D and one cause of damage. when there is numerous people involved it becomes complex for the court, particularly for jury as need to pinpoint whether D is the cause of death or not. therefore a criticism will lead to uncertainty in outcomes and increase appeals. increase litigation and costs. however provides a consistent test that allows all D to be treated in the same way.
what is causation in law and the case
damage must not be too remote from the negligence of D
the injury or damage must be reasonably foreseeable- this is the test for remoteness as established in wagon mound.
D will be liable if the type of injury was reasonably foreseeable even if the precise way the injury would occur was not.
bradford v robinson rentals
doughty v turner abestos
what happens in the case of bradford v robinson rentals (CIL)
c suffered frosbite after driving in an old van with no heating across the country
held: although the injury was unusual in cold weather it was reasonably forseeable and not too remote. the employers were liable.
what happens in the case od doughty v turner abestos (CIL)
the asbestos lid fell into some molten liquid and caused an explosion- burns to C
held: damage was too remote and not reasonably foreseeable that an explosion would occur
advantages of using CIL
promotes a common sense approach- clear distinction between cases e.g doughty v turner asbestos and bradford v robinson rentals as one could be foreseen wheras the other one couldnt. easier for lay people to understand and the judges can advise with ease. however arguments that the rules on remoteness on damage can be unfair on some C as D liability may limit remedy.
what are novus actus interveniens
an intervening act that can break the chain of causation. the principle to be applied is whether the injury or damage was a foreseeable consequence of the original act
what are the types of novus actus interveniens
act of claimant, act of nature, act of a third party
what is the case of an act of claimant as an NAI and case facts
mckew v hollands- c suffered broken ankle when walking down stairs and not using hand railing. climbing the stairs unaided was a NAI so D was not liable
what is the case of an act of nature as a NAI and case facts
carslogie steamship v royal norweigan- ship damaged in collision and sailed to USA for rapair and suffered further damages in a storm. storm was a NAI so D wasnt liable
what is the case of an act of a third party as a NAI and case facts
knighty v johns- caused collision which made tunnel blocked. PC ordered a PC to drive to close it off. drove down wrong side of road and caused a collission.
held: negligent act of the ploice couldnt be forseen by the D (original guy in collission) so NAI
disadvantage of novus actus interveniens
the rules concerning NAI do not provide consistent outcomes. interveining acts need to be decided on a case by case basis and not all judges/jurors will reach the same verdict. this can lead to lawyers being unable to advise their clients on the liklihood and their case becayse of the uncertainties that could arise if the case goes to court.
what are eggshell conditions (damages) and case
D must take victim as he finds him. if V has a pre-existing condition then D will be liable for all subsequent consequences
smith v leech brain and co
what happens in the case of smith v leech brain and co (eggshell conditions)
the Cs lip contained pre cancerous and a burn caused to the Cs lip and led to cancer and died 3 years later.
held: court decided that a burn was reasonably foreseeable and because of eggshell condition, D was liable for his death
why might eggshell conditions be unfair
the D is unaware of the condition and no matter how safe D makes a workplace (smith v leech brain and co) accidents can still happen and it seems harsh for someone to be liable for someones death for a small accident and a condition they were unaware of.
how may eggshell conditions uphold public policy
the C is entitles to compensation for injuries when made worse by the negligent act of D, taking a person as you find them reflects societal thinking so that more vulnerable people are protected
what are the different defences
contributory negligence
consent
what is contributory negligence and case (defences)
partial defence and will result in a reduction of damages
law reform act states any damages awarded to the C can be reduced according to how much the C contributed to their own harm.
commonly used for injuries or damage in road traffic accidents e.g. motorcyclist not wearing their helmet.
sayers v harlow urban district council
what happens in sayers v harlow urban district council (contributory negligence)
C was trapped in toilet and tried to escape over the door whilst standing on toilet roll holder- injured
held: council was liable for negligence maintenance but damages reduced by 25% because of how she tried to escape.
What is consent (defences) and case
Is a full defence and the claimant witll not receive any damages
In order to use, the D must show: 1.claimant had full knowledge of the precise risk involved. 2.claimant exercised free choice. 3.C voluntary accepted risk.
Road traffic act- defence can’t be used fir road traffic accidents- C knows existence of risk
Defence will not succeed where the claimant has no choice but to accept the risk. And voluntarily take risk of Harm.
Ogwo v Taylor
What happens in the case of ogwo v Taylor (consent- defence)
Firefighter was given a uniform but suffered serious burns but the employer argued he consented when he took the job.
Held: DOC was owed and defence failed- wasn’t aware uniform would cause that.
What is an example of reform
A state run benefit (like Canada) which pays compensation to those who are victims of accidents without the ability to prove why the accident happened funded through general taxation.
What are the different types of remedies
Pecuniary losses and non pecuniary losses
What are pecuniary losses
Can be quantified in monetary terms- Medical expenses, lost wages, repair
Covered by special damages to compensate
What are non pecuniary losses
Losses that can’t be quantified in monetary terms e.g. pain, suffering, loss of life, distress
Covered by general damages- compensation more subjective
What will the payment be like for damages
Lump sum or instalments if D can’t pay all at once
