Tort Law - Negligence

Question 1

what is negligence?

Answer 1

failure to take proper care.

Question 2

what does negligence cover?

Answer 2

personal injury and property damage

Question 3

the burden of proof lies with the…

Answer 3

claimant

Question 4

what case established negligence?

Answer 4

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.

Question 5

what is the three part test for negligence?

Answer 5

1. Duty of Care
2. Breach of Duty
3. Caused Damage

Question 6

what case example can be used to overview ‘Duty of Care’?

Answer 6

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.

Question 7

what are examples of established duties?

Answer 7

doctor / patients
teacher / student
employer / employee
manufacturers / consumers

Question 8

what case examples can be used for ‘existing duty’?

Answer 8

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’

Question 9

what happens if it’s a novel situation?

Answer 9

judges should use a similar case if possible, if not use the Caparo Test.

Question 10

what is the caparo test?

Answer 10

1. Is harm reasonably foreseeable from Ds actions?
2. Is there an element of proximity?
3. Is it fair just and reasonable to suggest they owe a duty?

Question 11

what case example can be used for ‘novel areas of law’?

Answer 11

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.

Question 12

what is the reasonable man?

Answer 12

would the sober reasonable man, sharing Ds characteristics have acted in the same way as the defendant?

Question 13

what case example can be used for ‘reasonable man’?

Answer 13

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.

Question 14

what characteristics are relevant?

Answer 14

Professional - same profession with same skill set
Learner - judged against the competent person
Child - judged against child of the same age

Question 15

what case example can be used for ‘characteristics’?

Answer 15

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.

Question 16

what are the 5 risk factors?

Answer 16

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

Question 17

what 3 case examples can be used for ‘risk factors’?

Answer 17

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.

Question 18

what is factual causation?

Answer 18

‘but for’ the actions of the defendant, would the outcome still have occured

Question 19

what case example can be used for ‘factual causation’?

Answer 19

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.

Question 20

what is legal causation?

Answer 20

no intervening acts. morally responsible.

Question 21

what is the law on remoteness?

Answer 21

the injury must be foreseeable and not remote

Question 22

what case example can be used for ‘remoteness’?

Answer 22

Wagon Mound - Oil spilled from boat onto harbour onto electrical work. Oil spill not foreseeable so boat was not liable.

Question 23

what are the other relevant issues?

Answer 23

thin skull rule - take the victim as you find them

Question 24

what case example can be used for ‘other relevant issues’?

Answer 24

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.

Question 25

what defences are available to negligence?

Answer 25

contributory negligence - contributing to the damage
consent - consenting to the negligence

Question 26

what are some positive evaluation points for negligence?

Answer 26

✅ 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

Question 27

what are some negative evaluation points on negligence?

Answer 27

❌ 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