The Law of Negligence

Question 1

What is tort?

Answer 1

A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act.

Question 2

What does the Law of Negligence allow victims to claim?

Answer 2

The law allows the victims to claim money, known as damages, to compensate for the commission of the tort.

Question 3

What is the defendant (who pays the damages) also referred to?

Answer 3

the ‘tortfeasor.’

Question 4

Name some areas the law of negligence covers.

Answer 4

Negligence
Trespass to land or the person
Nuisance
Defamation

Question 5

What is negligence?

Answer 5

It concerns a breach of a legal duty to take care, with the result that damage is caused to the claimant.

Question 6

What are the three types of harm negligence protects against?

Answer 6

Personal Injury;
Damage to Property; and
Economic loss.

Question 7

What are the three elements of the tort of negligence?

Answer 7

The defendant must owe the claimant a duty of care;
The defendant must breach that duty of care;
That failure must cause damage to the claimant.

Question 8

Explain the duty of care prior to 1932?

Was there a test?

How would they find that a duty of care existed?

How many cases did the courts find a duty of care?

Answer 8

Prior to 1932, there was no recognised test for determining whether a duty of care existed unless there had been a previous case before the court.

The court would only find that a duty of care existed when a claim fell squarely with precedent or by way of analogy with established case law.

The courts only found a duty of care in a small number of situations.

Question 9

What did Donoghue v Stevenson 1932 see the courts move away from?

What approach did they move more towards?

Answer 9

saw the courts move away from the idea that people only owed a duty of care towards those that they have a contract with, or those already established duties in case law.
The courts moved to a more principled approach

Question 10

What is the neighbor principle? Lord Atkin.

Answer 10

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected when I am directing my mind to the acts or omissions in question.”

Question 11

What two main principles came out of the neighbor principle/ this judgement?

Answer 11

Reasonable Foreseeability; and

Proximity of relationship.

Question 12

The neighbourhood principle was replaced by the three stage test in the case of? In where?

Answer 12

Caparo Industries Plc v Dickman [1990]

HOL

Question 13

What were the three stages to the three stage test that replaced the neighbourhood principle?

Answer 13

Was the damage or harm reasonably foreseeable?
Is there a sufficiently proximate (close) relationship between the claimant and the defendant?
Is it just, fair and reasonable to impose a duty of care?

Question 14

Do all three stages need to be satisfied to establish a duty of care was owed?

Answer 14

Yes.

Question 15

If all three stages are satisfied does this mean the defendant is definitely liable?

Answer 15

this does not automatically make the defendant liable as other elements of negligence must be satisfied.

Question 16

What is Reasonable Foreseeability?

Answer 16

The courts will ask whether a reasonable person in the defendant’s position would have foreseen the risk of damage.
If so this element will be satisfied.

Question 17

Give a case for Reasonable Foreseeability.

Answer 17

Kent v Griffiths [2000]

Jolley v Sutton London Borough Council [2000]

Question 18

In some cases the courts have decided that it is not reasonably foreseeable that the claimant would suffer harm, give a case example.

Answer 18

Bourhill v Young [1943]

Topp v London Country Bus (South West) Ltd [1993]

Question 19

What is Proximity of relationship?

Answer 19

Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship of the claimant and the defendant is sufficiently close.

Question 20

Give a case for Proximity of relationship.

Answer 20

Hill v Chief Constable of West Yorkshire (1990) (no)

Question 21

Give a case for proximity and just, fair and reasonable. Why does it apply? How does it relate to the police?

Answer 21

Osman v Ferguson (1993)

The case did not succeed, however, because it was ruled that it was not fair, just and reasonable to impose a duty of care on the police.

Question 22

In general terms if if the harm is foreseeable and there is proximity of relationship what will the courts deem it?

Answer 22

just, fair and reasonable to impose a duty of care.

Question 23

Who are the courts reluctant to impose a duty of care on? Give a case example.

Answer 23

The courts are reluctant, however, to impose a duty of care on public authorities, as seen in the case of Osman v Ferguson.

Question 24

What is the justification for the reluctance to impose a duty of care on public authorities e.g. the police?

Answer 24

The justification here is that by imposing such a duty on police could lead to policing being carried out in a defensive way which might divert resources and attention away from the suppression of crime.

In theory it would lead to a lower standard of policing rather than a higher one.

Question 25

Who has criticized the approach of reluctance to impose a duty on police?

Answer 25

the European Court of Justice.

Question 26

What did Capital & Countries plc v Hampshire County Council (1997) say about a duty of care and police?

Answer 26

If a public authority has, through their own actions, created a new danger, or substantially increased the risk of an existing danger, then the courts are more likely to hold that it is just, fair and reasonable to impose a duty of care. (Fire brigade and turned off sprinkler system).

Question 27

What is the general rule for omissions and a duty of care?

Answer 27

The general rule is that you do not owe a duty to the world for your omissions, i.e. for doing nothing to prevent harm.

Question 28

What is generally needed for a duty of care and what is the exceptions?

Answer 28

Generally it will require the defendant to do positive act or wrongdoing.
An exception to the rule is if there is a special relationship, e.g. you are a lifeguard and you witness someone drowning.

Question 29

If you decide to act, even though you are under no duty to act, and in doing so made matters worse than they would have been you may be held liable, or at least you will have established a duty of care.

What case backed this up?

Answer 29

East Suffolk Rivers Catchment Board v Kent (1941).

Question 30

What are the courts able to do if you act without a duty and made matters worse?

Answer 30

The courts are also free to impose an exception to the rule under those circumstances.

Question 31

Following on from the ruling in Caparo, it was widely accepted that the three-stage test was the standard test to be applied in negligence cases in determining whether a duty of care existed, in what case did the Supreme Court say this wasn’t the case?

Answer 31

Robinson v Chief Constable of Yorkshire [2018]

Question 32

What did Robinson v Chief Constable of Yorkshire say the test type should be?

Answer 32

The decision in Robinson suggested that the courts should follow the incremental test when establishing whether a duty of care exists.

Question 33

What did Robinson v Chief Constable of Yorkshire say that the court should first assess?

Answer 33

To establish whether the defendant owes the claimant a duty of care, the court will first assess if there is already an established duty in law.

Question 34

In Robinson v Chief Constable of Yorkshire was did they say the Incremental Test was?

Answer 34

If there is not an already established duty, the court can use the ‘reasoning of analogy’ to discover if there are similar cases to help them establish whether a duty exists.

Question 35

To be liable in the tort of Negligence, the claimant must also breach their duty of care held, what is a breach of duty?

Answer 35

This means that the defendant must be at fault by failing to come up to the standard required by law for fulfilling their duty.
Whether a defendant has breached a duty of care is a question of fact for the judge to decide.

Question 36

What is the two stage test to establish a breach of duty for Negligence?

Answer 36

1. The court will assess how the defendant ought, in the circumstances, to have behaved, i.e. what standard of care the defendant should have exercised (a question of law);
2. The court will then decide whether the defendant’s conduct fell below the required standard of care (a question of fact).

Question 37

What will the standard of care be determined based on?

Answer 37

The standard of care will be determined based on the circumstances of the case.

Question 38

How is the standard of care generally measured?

Answer 38

The standard of care required is generally measured according to an objective method of testing.

Question 39

What did Lord Alderson B create and in what case?

Answer 39

In Blyth v Proprietors of the Birmingham Waterworks (1856) Lord Alderson B created the ‘reasonable man’ test to establish breach of duty.

Question 40

How will the defendant be judged in the ‘reasonable man’ test?

Answer 40

In this way the defendant will be judged on what the standard of the ‘reasonable person’ would be under the same circumstances.

Question 41

In Hall v Brooklands Auto-Racing Club (1933) what did Lord Greer say a ‘reasonable man’ was?

Answer 41

The ‘man on the Clapham Omnibus’ or the ‘average man on the street.

Question 42

For the reasonable man test what have the courts developed?

Answer 42

Courts have developed rules to determine the standard in which the defendant should be measured.

Question 43

For the foreseeability of risk, the risk must be foreseeable, if the risk of harm is not known then there is no breach. Give a case.

Answer 43

Roe v Minister of Health (1954)- Anaesthetic was kept in glass ampoules. At the time it was not known that invisible cracks could occur in the glass and allow the anaesthetic to become contaminated. The claimant was paralysed by some contaminated anaesthetic, however, there was no breach as the risk was unknown. The doctor’s in this case had acted without fault.

Question 44

For the magnitude of risk what two elements are involved?

Answer 44

1. How likely was it that the defendant’s actions could cause an injury or damage?
2. If an injury/damage were to occur, how serious would the likely injury/damage be?

Question 45

What does the first element for the magnitude of risk (how likely) refer to?

Answer 45

The first refers to the likelihood of injury or damage occurring.

Question 46

What does the second element for the magnitude of risk (how serious) refer to?

Answer 46

The second refers to the greater the chances of the defendant’s activity causing injury to the claimant, the more precautions the defendant must take.

Question 47

Where the risk is small then it is unlikely that there will be a duty of care.

Answer 47

Bolton v Stone (1951)

Question 48

Where the risk is large then it is likely that there will be a duty of care.

Answer 48

Miller v Jackson (1977)

Question 49

Where it is known that there is a risk and no steps are taken to guard against that risk, there is likely to be a breach of the duty of care. (Likelihood of injury occurring).

Answer 49

Haley v London Electricity Board (1965)

Question 50

(Seriousness of injury) The more serious the potential injury is then the standard of care expected of the reasonable person will be…

Answer 50

Greater

Question 51

(Seriousness of injury) If the defendant knows that a particular individual runs a risk of suffering greater damage than normal, this will similarly (what?) the obligations of the defendant.

Answer 51

Increase

Question 52

The more serious the potential injury is then the standard of care expected of the reasonable person will be greater.

If the defendant knows that a particular individual runs a risk of suffering greater damage than normal, this will similarly increase the obligations of the defendant.

GIVE A CASE. (SERIOUSNESS OF INJURY)

Answer 52

Paris v Stepney Borough Council (1951)

Question 53

(Practical precautions) In deciding whether the defendant has done all that a reasonable person would have done to guard against the risk of injury, what will the courts consider?

Answer 53

In deciding whether the defendant has done all that a reasonable person would have done to guard against the risk of injury, the courts will consider what practical measures could have been taken to reduce the risk and the cost of those measures.

Question 54

If the risk of injury could have been substantially reduced at a low cost to the defendant, the defendant would have acted unreasonably if?

Answer 54

he or she fails to take the necessary precautions and therefore will be in breach of their duty.

Question 55

If the defendant would have incurred great expense which would only produce a very small reduction in risk, it will be reasonable for the defendant to do?

Answer 55

Nothing.

Question 56

Will great expense exclude the defendant where the risk of injury is great?

Answer 56

No.

Question 57

(Practical pre-cautions) In Paris v Stepney Borough Council the cost and effort of providing goggles was

Answer 57

very small compare to the consequences of the risk.

Question 58

Give a case for practical pre-cautions.

Answer 58

Latimer v AEC Ltd (1953)- The court held that they had taken sufficient steps to prevent injury in the circumstances. - sawdust, flooded factory unreasonable to expect owners to close factory (only way to completely guard risk).

Question 59

A defendant can sometimes escape liability in a case if they can show there was a justification in taking the risk. What situation might this be in? Give a case example.

Answer 59

This might be a situation where a defendant takes a risk to save someone’s life or it is in the public’s interests.
Watt v Hertfordshire County Council (1954)

Question 60

There is a special standard of care owed to those who have professional liability. Give the case and test.

Answer 60

Legal Principle: Development of the ‘Bolam’ Test

Bolam v Friern Hospital Management Committee (1957)

Question 61

What is the Bolam Test?

Answer 61

A man need not possess the highest expert skill; it is…sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

In other words, where the defendant has some expertise, for example, a doctor, then the standard of care expected will be from the reasonable doctor.

Question 62

Is there any allowance for a defendant who has a lack of experience in a particular activity or skill?

Answer 62

No.

Question 63

Each case is determined by the activity or skill in question. What must the defendant meet?

Answer 63

The standard relevant to the activity with no allowance will be made for their lack of qualification.

Question 64

Wells v Cooper (1958)

Answer 64

The standard of care will be dealt with based on each case for the activity or task in question. A householder who attempts a job normally done by a professional is negligent if the job should not have been done without the proper training.

Question 65

Wilsher v Essex Area Health Authority (1987)

Answer 65

The defendant was held to be in breach of their duty of care. It did not matter that they were a junior doctor, they still held the same standard of care as a qualified doctor.

Question 66

Nettleship v Weston (1971)

Answer 66

The Court of Appeal held that the standard of care for a learner driver would be the usual standard applied to that of an experienced and skilled driver.

Question 67

Montgomery v Lanarkshire Health Board [2015]

Answer 67

XXX

Question 68

The standard of care for children will be based on the age of the child.

Give a case example.

Answer 68

Mullins v Richards (1998)

Question 69

Even where the claimant has proved that the defendant owed him a duty of care and that the defendant has broken that duty of care, what must the defendant do?

Answer 69

CAUSATION.

The claimant must still prove that the damage suffered was caused by that breach of duty.

Question 70

The test derived by the courts to determine this question is known as the ‘but for’ test.
What is this?

Answer 70

But for the defendant’s breach of duty, would the harm to the claimant have occurred?”

Question 71

What type of causation is the ‘but for’ test?

Answer 71

This is known as factual causation – factually linked to the acts or omissions of the defendant.

Question 72

Explain a case for factual causation.

Answer 72

Barnett v Chelsea and Kensington Hospitals (1969)

The evidence shown in court stated that at the time the husband had contacted the hospital it was already too late to save his life. This meant that the death was not the result of the doctor’s breach of duty and so the claim failed. The doctor was not the factual cause- shown by the ‘but for’ test.
IS IT BY R V MOHAN?

Question 73

Once all other elements of negligence have been satisfied consideration must be given to?

Answer 73

Once all other elements of negligence have been satisfied consideration must be given to the extent of damage suffered by the claimant caused by the defendant.

Question 74

What is the extent of damage suffered by the claimant caused by the defendant called?

Answer 74

‘remoteness of damage.’

Question 75

What must the damage suffered by the claimant caused by the defendant not be? And what must it be?

Answer 75

The damage must not be too remote from the negligence of the defendant, i.e. the damage sustained must be reasonably foreseeable.

Question 76

Give a case example for the remoteness of damage?

Answer 76

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd. (The Wagon Mound (No.1) (1961)

It was decided that although the damage done to the wharf was a result of the oil spill, it was not reasonably foreseeable. It was too remote from the original negligent act of spilling the oil. If the oil had caused damage that would be foreseeable, but damage caused by fire was too remote.

Question 77

What is The Wagon Mound test for remoteness of damage? What does it mean?

Answer 77

‘if a reasonable person would not have foreseen the damage it cannot be recovered.’

This means if the damage was not foreseeable there can be no claim.

Question 78

There are two proviso’s to the rule on remoteness of damage, these are:
(The Wagon Mound test)

Answer 78

The ‘similar in type’ rule (where the type of injury is foreseeable); and
The ‘egg-shell skull’ rule (or the ‘thin-skull’ rule).

Question 79

(Type of injury foreseeable) If the type of injury sustained by the claimant is foreseeable, even if the cause of the injury is not, the defendant will be? Give a case example.

Answer 79

Will be liable.
Hughes v Lord Advocate (1963)

The boy was able to claim for his injuries since it was foreseeable that a child might explore the sight, break a lamp and be burnt. The type of injury was foreseeable, so, even thought he explosion was not foreseeable, the defendants were liable.

Question 80

What is the ‘Thin-Skull Rule’?

Answer 80

If the type of damage is reasonably foreseeable, but is much more serious because of something unusual about the claimant, the defendant will still be liable for the main extent of those injuries.

This rule means that the defendant must take their victim as they find him.

Question 81

Give a case for the Thin-Skull Rule.

Answer 81

Smith v Leech Brain & Co. Ltd (1962)

The defendant was liable for his death. It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell skull rule applies and the defendant must take his victim as he finds him.

Question 82

What are the two defences for negligence?

Answer 82

Volenti non fit injuria (Consent)

Contributory Negligence

Question 83

Who does the burden of proof lie with and what must they do?

Answer 83

The burden of proof in civil cases is on the claimant.

The claimant has to prove all elements of the tort of negligence to win their case.

Question 84

What is the burden of proof based on?

Answer 84

The burden of proof is based on the ‘balance of probabilities’ – the judge will decide who is most likely right in the case, i.e. the claimant or the defendant.

Question 85

What is the exception to the rules on the burden of proof? What is it called?

Answer 85

There is an exception to the procedure known as the rule of res ipsa loquitur.

Question 86

What is ipsa loquitur?

Answer 86

“the thing speaks for itself”.
This is where there is a presumption that the defendant was negligent even when the claimant does not know how the breach of duty has occurred.

Question 87

Give an example for ipsa loquitur?

Answer 87

Billy goes in for an operation at hospital. After the operation Billy becomes ill and complains of severe pain in his stomach where the scars from the operation are. After medical examination it is discovered that the surgeon has left a surgical swab inside of Billy after he closed the surgical wound. Billy would have been unaware how the duty of care was breached as he was unconscious throughout the operation. He only became aware of the breach after the swab had been located.

Question 88

Where was the three stage test developed for ipsa loquitur?

Answer 88

Scott v London and St Katherine’s Docks Co. (1865)

Question 89

What is the three stage test for ipsa loquitur?

Answer 89

The three stage test that will prove the res ipsa loquitur rule is as follows:

The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible;

The accident must be such as would not normally happen without negligence;

The cause of the accident is unknown.

Question 90

What is control- for the ipsa loquitur three stage test?

Answer 90

The events leading up to the accident must be under the defendant’s control.
If the events leading up to the accident are under the control of others then the defendant may not have to prove they were not negligent.

Question 91

Give cases for three stage test for ipsa loquitur- control.

Answer 91

Gee v Metropolitan Railway. (1873) YES

Easson v L.N.E.R (1944) NO

Question 92

What is Accident Would Not Occur without Negligence- three stage ipsa loquitur test?

Answer 92

The second condition is that the accident must not normally have happened without negligence.

Question 93

What is unknown cause- three stage ipsa loquitur test?

Answer 93

The last condition us that the cause of the accident is unknown – if the cause is known the rule will not apply and the claimant will have to prove negligence the normal way.

Question 94

Give a case for unknown cause- three stage ipsa loquitur test?

Answer 94

Barkway v South Wales Transport (1950) – A defective tyre was proved to have been the cause of a bus veering off the road. Since the cause of the accident was known, res ipsa loquitur did not apply.

Question 95

If all three elements are satisfied the defendant will have to prove what?

Answer 95

That they were not negligent.

Question 96

What are Compensatory Damages?

Answer 96

In negligence cases the court will award a successful claimant an amount of money as compensation for the injuries or damage to property they have suffered.
This award is known as damages.

Question 97

What is the aim of compensatory damages?

Answer 97

The aim is to place the victim in the same position as if the tort had not been committed.
This can be done easily where the claim is damage to property.

Question 98

Why is there flaws to compensatory damages?

Answer 98

It is more difficult when the claimant has suffered personal injuries, especially if they have suffered a permanent disability or the claimant has died and a claim is being made on behalf of their estate.

Question 99

What is the courts role in compensatory damages?

Answer 99

The job of the court is to put a financial value on their loss, pain and suffering.
(claimant)

Question 100

What is pecuniary loss?

Answer 100

These are easily calculated in money terms.
They include anything that can be calculated in a financial value, such as the cost to repair a car or the money spent buying prescription drugs as a result of the negligent act or omission.

Question 101

What is non-pecuniary loss?

Answer 101

This refers to claims that are not money-based.
This will include the pain and suffering of the claimant due to the injuries caused by another person’s negligence.
It will also include compensation for any future losses due to a change in lifestyle which the injuries have caused.
This is known as ‘ loss of amenity.’

Question 102

What is compensation for any future losses due to a lifestyle change which the injuries have caused known as?

Answer 102

This is known as ‘ loss of amenity.’

Question 103

What is mitigation of loss?

Answer 103

The claimant is entitled to be compensated for his loss, but he or she is also under a duty to keep the loss at a reasonable level.
This is called mitigation of loss.

Question 104

What does mitigation of loss apply to?

Answer 104

The principle will apply to both treatment and damage to property.
If the claimant’s property is lost or damaged beyond repair as a result of the negligence, the claimant is entitled to the cost of that property.

Question 105

If the property is extremely expensive what can happen? (mitigation of loss).

Answer 105

If the property is extremely expensive, the court may only award a percentage of the full cost for recovery.

Question 106

What are special damages?

Answer 106

This is the term for damages which can be calculated specifically.
In other words it is the damages for the pecuniary losses.
This could be the loss of earnings as a result of taking time off work or the cost of repairing a car.

Question 107

What are general damages?

Answer 107

This is the term for damages awarded for non-pecuniary loss.
These can include an amount for pain and suffering, loss of amenity, and loss of future earnings.
It can also include an amount for any future costs, such as payments for nursing homes or adaptation to the household to accommodate a disability.

Question 108

When the courts make an award for general damages for pain and suffering and loss of amenity, what can they only award?

Answer 108

When the courts make an award of general damages for pain and suffering and for loss of amenity, they can only award a lump sum.

Question 109

Why might a lump sum be a problem for a claimant whose condition may become worse?

Answer 109

Because the value of money goes down each year and may not be enough to pay for the needs of the claimant.

Question 110

However, how could a one-off lump be unfair to a defendant?

Answer 110

This could be where the claimant’s condition improves considerably and they no longer need to pay for nursing or can go back to work again.

Question 111

What does the Damages Act 1996 provide the option of?

Answer 111

the option for structured settlements in some cases.

It allows parties to agree that the full amount or part of the amount is paid periodically, such as monthly or yearly.

Question 112

What will the defendant have to do for a structured settlement?

Answer 112

The defendant will be required to set this up through an annuity with a financial company.

Question 113

The Damages Act 1996 allows parties to agree that the payments be paid over a specific amount of time, e.g. for life or a period of years. What can the amount be?

Answer 113

The amount can be reassessed periodically to ensure the value is maintained.

Question 114

Do the courts have any control over a structured settlement?

Answer 114

The courts have no control over this arrangement and it must be agreed between the parties.