tort of negligence Flashcards
what is negligence
Negligence is the omission to do something which a reasonable man, guided by the considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do
Duty of Care – the neighbour principle
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’
who is your neighbour
your neighbour is someone so closely and directly affected by my act that I ought reasonably to have had them in contemplation as being so affected when I am directing my mind to the acts or omissions
Donoghue v Stevenson (1932) point of law
No claim in contract as she had not purchased the drink. But a claim in negligence could succeed as the company had a duty of care to its customers who were under Atkin’s explanation “their neighbour”. This had been breached
Caparo v Dickman 1990
a negligence claim will only succeed if 3 hurdles can be passed:
Is damage forseeable?
Is there proximity between parties? (closeness – in space, time or relationship)
Is it fair, just and reasonable to impose a duty?
Foreseeability objective test
Objective test – would a reasonable person in D’s position foresee that someone in Claimant’s (C’s) position might be injured.
Proximity
Bourhill v Young is an example of the proximity requirement
It was foreseeable that someone may suffer shock after seeing the aftermath of an accident but there is no liability where there is not a sufficient relationship between the parties.
Reasonableness
Is it fair, just and reasonable to impose a duty? This still allows judges to make ‘policy decisions’. They have to balance the risk of fraudulent claims (esp. nervous shock) and opening the “floodgates”.
Today they have to consider what is best for society as a whole.
DUE TO THE CASE OF Robinson v CCWY (2018) – THIS NO LONGER NEEDS TO BE CONSIDERED WHERE THERE IS WELL ESTABLISHED PRECEDENT e.g Doctors or drivers.
Breach of Duty
The standard of care that must be reached is that of the “reasonable man”.
He is expected to do this reasonably competently.
This is an objective standard so the individual’s circumstances are irrelevent.
(Risk) Factors that affect the Reasonable man standard
Special characteristics of the defendant?
Special characteristics of the claimant
Size of the risk
Have all practical precautions been taken?
What are the benefits of taking the risk?
Special characteristics of the defendant
Meant to be reasonably competent at the task they are doing.
Size of the risk
The reasonable man takes more care when there is greater risk but does not take precautions against highly unlikely events.
have all practical precautions been taken
Consider Bolton v Stone and Haley v London Electricity Board
Reasonable precautions do not always prevent injury.
What are the benefits of taking the risk?
Sometimes referred to as public utility – the idea that a lower standard will be required if reacting to an emergency
Damage
damage is not the same as damages
2 parts:
Causation in fact; and
Remoteness
Both must be proved for a claim in negligence to succeed.
Causation in fact (but for)
Barnett v Chelsea and Kensington Hospital (1968)
Point of law: If the prohibited consequence would still have occurred even without D’s negligence the but for test will not be met.
Multiple causes (causation)
Fairchild v Glenhaven Funeral Services (2002)
Point of law – where there are multiple possible causes C must prove that Ds breach caused the harm or made a material contribution.
Novus actus Interveniens
Corr v IBC Vehicles (2006)
Legal point: question was not if the particular outcome was foreseeable but whether the type of harm was foreseeable. If it was whether the eventual harm was, on the grounds of policy or fact, too remote. Suicide did not necessarily break the chain of causation and as there was no other cause of the depression that drove Mr Corr to suicide, there was not break in the chain of causation.
Remoteness of damage – reasonably foreseeable test
The Wagon Mound (1961)
●Type of damage must be reasonably foreseeable.
●N.B.Once damage is of a kind that is foreseeable the defendant is liable for the full extent of the damage no matter whether the extent of the damage is foreseeable.
Robinson (duty of care)
…. we must first establish a duty of care. this was founded by the novel cases using the test in Caparo v Dickman however today Robinson tells us that this can be found by analogy to existing cases where the laws has already established a duty. here it is well established that there is a duty of care between…
Caparo test
Firstly, duty of care is established using the three-part Caparo Test, which originated from the case of Caparo v Dickman 1990. In his judgement, Lord Bridge explained the parts to the Caparo test: foreseeability of damage, proximity between the defendant and the claimant and that it is fair, just and reasonable to impose a duty of care in such a situation.
