Tort Law - Negligence

Question 1

What is negligence defined as? And what case gave this definition?

Answer 1

Negligence has been defined in Blyth as “the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not”

Question 2

How many elements of negligence must be proven? What are the elements?

Answer 2

There are three elements that must be proven. These are Duty, Breach and Damage

Question 3

What is a duty of care?

Answer 3

A duty to take reasonable steps to prevent the claimant from incurring the personal injury or property damage whilst within the defendants care

Question 4

What is the modern test for duty of care?

Answer 4

The modern test was laid down in Caparo v Dickman. Three part test for duty of care; foreseeability, proximity and is it fair, just and reasonable

Question 5

What case amended our understanding of how the three elements for duty of care are to be applied?

Answer 5

Robinson v Chief Constable of West Yorkshire

Question 6

A. Foreseeability. What do the courts consider?

Answer 6

The courts consider “would the reasonable man in the defendants position have foreseen that someone in the claimants position might suffer any harm or loss?” If yes the test is satisfied.
This is an objective test as it does not matter whether the defendant himself foresaw the risk of harm or loss occurring

Question 7

A. Foreseeability. What case supports this?

Answer 7

Kent v Griffiths. Held: a duty of care was imposed as it would have been foreseeable to the reasonable man in the paramedics position that someone in the claimants position might be injured if not attended to immediately

Question 8

B. Proximity. What does proximity mean?

Answer 8

Proximity literally means closeness. A defendant and claimant may be proximate by time, space or relationship.

Question 9

B. Proximity. What case supports this?

Answer 9

Bourhill v Young. Held: the motorcyclist did not owe the claimant a duty of care as there was no proximity between the parties, the claimant did not witness the initial incident and she was a safe distance away

Question 10

C. Is it fair, just and reasonable? When does this element of the test need to be applied?

Answer 10

According to the case of Robinson v Chief Constable of West Yorkshire this element of the test need only be applied in a new and novel situations. This means of a duty of care has previously been recognised then this part need not be applied.

Question 11

C. Is it fair, just and reasonable? What are the courts considering under this element?

Answer 11

The courts are considering the wider implications of imposing the duty

Question 12

C. Is it fair, just and reasonable? What situations are the the courts generally reluctant to impose a duty?

Answer 12

1. When imposing additional duties on those performing public services
2. When they are concerned that recognising a duty will open the ‘floodgates to litigation’

Question 13

C. Is it fair, just and reasonable? Why are they reluctant to to impose a duty on public services?

Answer 13

The police and fire services need to be able to act without undue worry about legal action in negligence against them

Question 14

C. Is it fair, just and reasonable? What are the supporting cases for public services?

Answer 14

Hill v Chief Constable of West Yorkshire. Held: the police did not owe a duty of care to protect all victims of crime from criminal acts. They wanted the police to work as efficiently as possible without fear of prosecution.

Robinson v Chief Constable of West Yorkshire. Held: the police are not immune from negligence claims. A police officer can be liable to a person who is injured as a direct result of his acts or omissions. They are under a duty to protect individuals from a danger of injury which they have themselves created but not when they have not themselves created it

Question 15

C. Is it fair, just and reasonable? Why are they reluctant to impose a duty because of the floodgates argument?

Answer 15

The courts may be reluctant to impose a duty of care where they believe that this may give rise to a large number of claims that would overwhelm the legal system or are not entirely justifiable (because of the overwhelming burden it would place on defendants)

Question 16

C. Is it fair, just and reasonable? What case supports the floodgates argument?

Answer 16

Sumner v Colborn. Held: no such duty of care as recognition of such a duty would encourage claims by drivers insurers for contributions from owners of land adjacent to the highway in cases where visibility was an issue

Question 17

What is breach of duty?

Answer 17

The defendant has broken the duty, they failed to reach the standard of care that would have been expected in the circumstances

Question 18

What two things does breach of duty consider?

Answer 18

Type of reasonable man and risk factors

Question 20

What is the test for determining breach of duty?

Answer 20

The reasonable man test. The courts must establish what would have been expected from the reasonable man in the circumstances and then compare the defendants actions to that standard of care

Question 21

What case stated the ways the defendant can breach his duty of care?

Answer 21

Blyth. Defendant can breach his duty of care in two ways:

1. By doing something that the reasonable would not have done
2. By failing to do something that the reasonable man would have done

Question 22

What will determine the type of reasonable man the defendant will be compared to?

Answer 22

The level of skill the defendant is exercising

Question 23

The ordinary man: what is the defendant compared to? What is the case supporting this?

Answer 23

If the defendant is an ordinary person he is compared to an ordinarily competent person carrying out that task.
Wells v Cooper. Held: the man had demonstrated the standard of a reasonably competent man doing DIY and therefore had not breached his duty

Question 24

The learner: what is the defendant compared to? What case supports this?

Answer 24

Where the defendant is a learner they are not compared to a reasonably competent learner, they are compared to a reasonable competent person carrying out that task.
Nettleship v Weston. Held: the standard of care expected of the reasonable man would not be lowered because the defendant was a learner, she was compared to a reasonably competent driver and had breached her duty

Question 25

Professional: what is the defendant compared to? What case supports this?

Answer 25

Where the defendant is acting in the course of a profession they are compared to a reasonably competent professional within the particular area. This principle was laid down in Bolam, “a man need not possess the highest expert skill”.
Roe v Minister of Health. Held: the hospital were not found liable as this was found to be common practice at the time

Question 26

Children: what will the defendant be compared to? What case supports this?

Answer 26

A child will be compared to a reasonably competent child of that age.
Mullins v Richards. Held: she had not breached her duty of care as she had met the standard of care expected of a person of her age

Question 27

What are risk factors?

Answer 27

Risk factors are circumstances of the individual case that affect the standard of care that would be expected of the reasonable man in those circumstances

Question 28

What are the four risk factors?

Answer 28

1. Magnitude of risk. 2. Special characteristics of the claimants. 3. Practicality of taking precautions. 4. Social utility of the act.

Question 29

What is magnitude of risk? What case supports this?

Answer 29

The higher the risk of harm occurring, the higher the standard of care expected by the reasonable man in the circumstances.
Bolton v Stone. Held: there has been no breach of duty as the possibility of the risk occurring was so small that it probably wouldn’t have been anticipated by the reasonable man

Question 30

What are special characteristics of the claimant? What case supports this?

Answer 30

In circumstances where the claimant is suffering from a particular condition or illness which means they have a higher risk of suffering harm, this may raise the standard of care expected of the reasonable man in relation to the claimant.
Paris. Held: defendants had breached their duty of care as a higher standard of care would have been expected in relation to the particular claimant according to the increased risk

Question 31

What is practicality of taking precautions? What case supports this?

Answer 31

If it is easy to take precautions to prevent the harm from occurring, this raises the standard of care that would be expected.
Latimer. Held: defendant had not breached their duty as they had taken all the reasonable precautions that the reasonable man would have taken

Question 32

What is social utility of the act? What case supports this?

Answer 32

The potential social usefulness, good, value of the action can outweigh the risk of harm occurring and justify the imposition of a lower standard of care.

Watt. Held: the council had not broken its duty as the risk of harm to the fire fighters had to be balanced against the greater social good of freeing a woman from her trapped car

Question 33

Damage: what must be proven?

Answer 33

That the loss suffered was a consequence of the defendants actions

Question 34

What are the two parts to damage?

Answer 34

Factual causation and remoteness of damage

Question 35

Factual causation: what will the courts consider? What is the case to support this?

Answer 35

‘But for the defendants breach of duty would the claimant have suffered loss or harm?’
If no then the defendant is the factual cause and is liable.
Barnett. Held: the defendants were not liable as it is likely he would have died anyway, even if he had been diagnosed properly and received the correct medical treatment.

Question 36

Remoteness of damage: what is the test? What case was this established in?

Answer 36

The test for remoteness of damage is reasonable foreseeability. This is an objective test as the courts are considering if the losses are reasonably foreseeable to the reasonable man.
This test was established in Wagon Mound

Question 37

Remoteness of damage: what other factors are considered?

Answer 37

Only the type of damage not the extent caused needs to be foreseeable.
Only the harm/damage needs to be foreseeable, it does not matter if it occurs in an i foreseeable way.
Thin skull rule.

Question 38

Only the type of damage not the extent cause needs to be foreseeable: what case supports this?

Answer 38

Bradford v Robinson Rentals. Held: the damage the claimant suffered was not too remote, as some type of cold-related injury was foreseeable, it did not matter that it was to an unforeseeable extent

Question 39

Only the harm/damage needs to be foreseeable, it does not matter if it occurs in an unforeseeable way: what case supports this?

Answer 39

Hughes v Lord Advocate. Held: although the precise way in which the harm occurred was not foreseeable, it was foreseeable that if a child was present they may get burnt by the paraffin lamp; therefore the harm was not too remote

Question 40

Thin skull rule: what is it?

Answer 40

It is the exception to the remoteness of damage principle. It is the only circumstance where the defendant will be liable for unforeseeable harm or damage.
Where the harm or loss to the claimant is made worse because the claimant has a pre-existing condition of characteristic this does not mean that the harm or damage is too remote, the defendant is still liable for the full extent of the harm or damage.

Question 41

Thin skull rule: what case supports this?

Answer 41

Smith v Leech Brain. Held: defendant must ‘take a person as you find them’

Question 42

What are the types of reasonable man?

Answer 42

The ordinary man, the learner, the professional and children