Topic 2: Negligence, DoC, and Actionable Damage

Question 1

What are the elements of Negligence?

Answer 1

DoC, Breach of DoC, and Damage that isn’t too remote (i.e. factual and legal causation)

Question 2

What is Actionable Damage?

Answer 2

Damage that has had some sort of negative effect on the C, just because the D caused C to have a disease does not mean there is actionable damage (Rothwell v Chemical & Insulating Co [2008])

Question 3

What are the 3 roles of DoC?

Answer 3

Core Notional Duty, Factual Duty, and Policy Duty

Question 4

What case sets out the elements of finding a DoC?

Answer 4

Robinson v CC of West Yorkshire [2018]

Question 5

What elements for establishing a DoC did the case of Robinson find?

Answer 5

1) Does the case fall within an “established category” (e.g. doctor-patient) of DoC? 2) If no, does coherence with analogous cases imply there should be DoC? 3) Are there policy reasons for imposing a DoC?

Question 6

What key case identifies an “established category” of DoC?

Answer 6

Darnley v Croydon NHS Trust [2018]

Question 7

What did the case of ABC v St George’s Healthcare Trust [2020] set out?

Answer 7

Novel situation rule; (1) Analogous (2) Foreseeability and Proximity (3) Policy: Fairness, justice, reasonableness, and good for society?

Question 8

How would someone breach their DoC?

Answer 8

Falling below the OBJECTIVE standard (Reasonable person test)

Question 9

What are the 5 unique factors affecting the standard of care?

Answer 9

1) Probability of harm (Bolton) 2) Gravity of harm (Paris) 3) Cost of precautions (Bolton) 4) Utility of conduct (Watt) 5) Context (Wooldridge)

Question 10

What 4 attributes of the D are to be considered in determining a breach of a DoC?

Answer 10

1) Children (Mullin) 2) Incapacity (Mansfield) 3) Profession (Bolam Test) 4) Common practice (Baker)

Question 11

What is the test for factual causation?

Answer 11

The ‘but-for’ test

Question 12

What are the 3 problem cases for factual causation?

Answer 12

1) Material contribution to injury 2) Material contribution to risk of injury (Fairchild for asbestos cases, Barker for everything else) 3) Loss of chance (of avoiding injury)

Question 13

What are the 2 distinct tests for legal causation?

Answer 13

1) Remoteness of consequence (The Wagon Mound) 2) Subsequent event to break chain of causation

Question 14

What is the ‘egg shell skull’ rule?

Answer 14

You take the victim as you find them (i.e. if some damage wasn’t foreseeable because of their weakness, you will still be liable)

Question 15

What are the intervening acts that break the chain of causation?

Answer 15

DIVU (Deliberate, Informed, Voluntary, Unreasonable)

Question 16

Will a D still be liable for supervening acts?

Answer 16

Yes and no; if they are further torts then D will still be liable (Baker), if they are natural events then not liable after that event (Jobling)

Question 17

What are the Summary questions for Legal Causation?

Answer 17

1) Was the type of harm reasonably foreseeable? 2) Was there a DIVU intervening act? 3) Was there a natural supervening event? 4) Was C’s damage attributable to what made D’s act wrongful? 5) Is there a special reason to hold D liable for damage outside of the scope of their duty?