Tort Law - Negligence Flashcards
what is negligence?
failure to take proper care.
what does negligence cover?
personal injury and property damage
the burden of proof lies with the…
claimant
what case established negligence?
Donoghue v Stevenson - C found a dead snail in her ginger beer. D had a claim in negligence because manufacturers have a duty of care to the consumer.
what is the three part test for negligence?
- Duty of Care
- Breach of Duty
- Caused Damage
what case example can be used to overview ‘Duty of Care’?
Robinson - C knocked over by police. Able to make a claim against police as they were so closely related to her when acting, they ought to consider her.
what are examples of established duties?
doctor / patients
teacher / student
employer / employee
manufacturers / consumers
what case examples can be used for ‘existing duty’?
Road Traffic Act 1988 - ‘All road users owe a duty of care to other road users and pedestrians’
Health and Safety at Work Act 1974 - ‘Employers must protect the health, safety and welfare at work of all their employees’
what happens if it’s a novel situation?
judges should use a similar case if possible, if not use the Caparo Test.
what is the caparo test?
- Is harm reasonably foreseeable from Ds actions?
- Is there an element of proximity?
- Is it fair just and reasonable to suggest they owe a duty?
what case example can be used for ‘novel areas of law’?
Bourhill - C was pregnant and heard a road accident so went to go look. Suffered shock when she saw it and went into early labour, losing her baby. No claim as she chose to look at the crash.
what is the reasonable man?
would the sober reasonable man, sharing Ds characteristics have acted in the same way as the defendant?
what case example can be used for ‘reasonable man’?
Blythe - Birmingham Waterworks installed water mains around Birmingham and one of the mains leaked, causing a flood. BWC had done everything RM would do so no claim.
what characteristics are relevant?
Professional - same profession with same skill set
Learner - judged against the competent person
Child - judged against child of the same age
what case example can be used for ‘characteristics’?
Nettleship - Learner driver crashed into post on lesson. Instructor didn’t apply dual control. Leaner found liable of negligence. Instructor has contributed to negligence so both were found 50:50 to blame.
what are the 5 risk factors?
size of risk - bigger the risk bigger the duty
precautions - must be taken
public benefit - less duty over individual when it comes to public benefit
knowledge - unknown risks = less duty
vulnerable victim - more of a duty to protect
what 3 case examples can be used for ‘risk factors’?
Day - Indoor climber fell as she failed to attach harness. Climbing company not liable as they supplied harnesses and climbed knew risks.
Roe - 2 Cs given contaminated anaesthetic = paralysed. No claim as unknown risk to hospital.
Paris - C was blind in 1 eye, asked employer for PPE and didn’t get them. C went blind in other eye from injury. Employer liable.
what is factual causation?
‘but for’ the actions of the defendant, would the outcome still have occured
what case example can be used for ‘factual causation’?
Barnett - 3 Cs went to hospital when feeling unwell after drinking tea. Doctor turned them away. All 3 died. Doctor not liable because ‘but for’ him seeing them, they would’ve died anyways.
what is legal causation?
no intervening acts. morally responsible.
what is the law on remoteness?
the injury must be foreseeable and not remote
what case example can be used for ‘remoteness’?
Wagon Mound - Oil spilled from boat onto harbour onto electrical work. Oil spill not foreseeable so boat was not liable.
what are the other relevant issues?
thin skull rule - take the victim as you find them
what case example can be used for ‘other relevant issues’?
Paris - C was blind in 1 eye, asked employer for PPE and didn’t get them. C went blind in other eye from injury. Employer liable.
what defences are available to negligence?
contributory negligence - contributing to the damage
consent - consenting to the negligence
what are some positive evaluation points for negligence?
✅ caparo test covers novel situations
✅ case law = flexible
✅ multiple risk factors impact the duty is logical
✅ professionals should be judged against reasonable professionals
✅ remoteness helps avoid vague claims e.g Bourhill
what are some negative evaluation points on negligence?
❌ cost/time/delay
❌ could be unfair on learners
❌ does not follow PS
❌ should manufacturers owe a duty of care when they do not over see the start to end process and there could be anomalies
