Tort Law - Negligence Flashcards
What are the three things that need to be proven for negligence?
Duty of care
Breach of duty
Causing damage
What is negligence and how was this decided - in what case and what principle
Failure to take proper care
Donoghue v Stevenson
Neighbor principle - “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor
Who then is my neighbor?
Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation”
What do we ask next, and what case did this come from?
Whether the case is novel or not. This has recently came from the case of Robinson.
What do we do if the case is/is not novel?
If Not:
The courts should use the precedent of other similar cases (or a statute) to decide if there is a Duty of Care (and you will need to identify this in your answer)
If Yes:
Use reasoning by analogy (similar cases) to come to a conclusion OR use one of the factors of the Caparo test (ONLY HAVE TO USE ONE OF THE OPTIONS)
Some common ‘not novel’ situations - cases and examples
Doctors and patients - Taking the Hippocratic oath - Bolam v Friern, Barnett v Chelsea
Drivers and Pedestrians - Road Traffic Act/Highway Code - Nettleship v Weston
Employers and employees - Paris v Stepney Borough Council
Caparo test - what are the three questions it asks (With cases)
Was damage or harm reasonably foreseeable?
Case - Kent
Is there sufficient proximity (closeness) in the relationship between Claimant and Defendant
Case - Bourhill
Is it fair, just and reasonable to impose a duty of care?
Case - Hill
Breach of duty - What is the standard of care, what case was this decided in, and what case added to the definition
Blyth told us that the standard of care is objective ‘is the reasonable person’
Wells added ‘performing the task competently’
Breach of duty- what two things do we look at?
Class of persons - whether D belongs to a class of persons
Risk factors
Class of persons - what three ‘persons’ do we look at?
Professionals
Learners
Children and Young People
You only have to mention the relevant one. If they are none of these they have the same standard of care as a reasonable person in their job or position.
Class of persons - Professionals - how do their standard of care change and what case is used (describe the test)
Their standard of care is higher as they are a professional
Usually a doctor
In an exam make sure to consider whether they are actually a professional - expert in a highly respected field - usually requires a degree
Bolam introduces the Bolam test:
1. Does D’s conduct fall below that of the ordinary, competent member of that profession?
2. Is there a substantial body of opinion within that profession who would support D’s actions?
Montgomery says patients need to be advised of ALL risks
Class of persons - Learners - how this affects standard of care and the case
Learners have the same standard of care as a fully qualified person in that field
Nettleship v Weston
Class of persons - Children and Young People - how this affects standard of care and the case
However the child is, is what they will be compared to e.g. a 15 year old would be compared to other reasonable 15 year old’s in that situation
Mullin
Risk factors - name the 4 that are available
Size of Risk
All Necessary Precautions Taken
Emergency Situation
Any Special Characteristics that need to be taken into account
ONLY USE 1 OR 2 THAT ARE RELEVANT TO THE SCENARIO QUESTION.
Risk factors - size of risk - the cases and how they affect standard of care
Haley - higher risk, higher standard of care
Bolton - lower risk, lower standard of care
Risk factors - All Necessary Precautions Taken - the cases and how they affect standard of care
Latimer - taking all necessary precautions proves the standard of care is met (normal)
Risk factors - Special Characteristics - the cases and how they affect standard of care
Paris - higher standard of care that needs to be met due to special characteristics
Risk factors - Emergency Situation - the cases and how they affect standard of care
Day - lower standard of care as the need for urgency is more important
Causation of damage - what three things are required
Factual Causation
Legal Causation
Remoteness of damage
Factual causation - what test do we use with the case?
‘but for’ test - would the end result of happened but for D’s acts or omissions.
Barnett
Legal Causation - how does this differ from criminal law?
Legal causation in negligence means any Novus Actus Interveniens that can break the chain of causation.
Legal Causation - three things that can break the chain of causation, with cases
The claimant - McKew
Nature - Carslogie
A third party - Knightley
Remoteness - what does this mean and what is the rule that was established (include the case)
The damage must not be too far removed from the negligence of the defendant
The rule comes from The Wagon Mound:
The injury or damage must be reasonably foreseeable for the defendant to be liable
What two things do we have to consider when talking about remoteness of damage
Only the type of risk is needed to be foreseeable - not the extent
Case of Bradford
Thin Skull Rule applies - take your victim as you find them
Smith v Leech Brain
What are the two negligence defences that are available?
Contributory Negligence
Consent (Volenti)
Contributory Negligence - What act handles damages for the claimant when they have contributed and what does it say?
Law Reform (Contributory Negligence) Act - any damages awarded to the complainant can be reduced according to the extent or level the D contributed to the damage.
