tort of negligence

Question 1

what are the three elements that you must prove to be successful in a claim

Answer 1

1. d owes c a duty of care
2. d has breached that duty
3. c has suffered damage resulting from the breach.

Question 2

which case does the neighbour principle come from and what is the ratio

Answer 2

Donoghue v Stevenson

Question 3

what did lord Atkin say about the neighbour test

Answer 3

you must take reasonable care to avoid acts or omissions that you can reasonably foresee might injure your neighbour.

Question 4

what is the neighbour test

Answer 4

any person(s) who is/ are clearly and directly affected by my acts or omissions

Question 5

what was the case called that turned the 2 stage neighbour test into 3 stages and what was the ratio

Answer 5

Caparo Industries plc v Dickman
H: the HoL laid down a formula for determining whether there is a duty of care in negligence cases. It was stated that there were now three questions to be asked in deciding whether a duty of care was owed by the defendant to the claimant.

Question 6

what are the 3 stages of the Caparo test

Answer 6

1. was it reasonably foreseeable that a person in C’s position would be injured?
2. was there sufficient proximity between the claimant and the defendant in relationship or time and space?
3. Is it fair, just and reasonable to impose a duty of care? (policy)

Question 7

explain the case that you use for the first stage of the Caparo test

Answer 7

Kent v Griffiths
F: C was having a severe asthma attack and the ambulance took 40 mins to arrive and couldn’t provide a satisfactory reason for the delay. the claimant has a respiratory arrest as a result
H: it was reasonably foreseeable that if the ambulance was late this would cause further harm to the victim

Question 8

what two cases are used for the second stage of the caparo test

Answer 8

Osman v Ferguson

Bourhill v Young

Question 9

explain the case of Osman v Ferguson

Answer 9

F: the attacker had a fixation about a schoolboy and the police knew that there was a real risk of an attack. the boy’s father was then murdered by the attacker and the boy seriously injured.
H: there was proximity between the police and the victim as the police knew he was a possible victim.

Question 10

explain the case of Bourhill v Young

Answer 10

F: C was on a tram. D drove his motorbike past the tram at excessive speed and collided with a car 50 feet away from where C was standing. C heard the collision but didn’t see it. a short time later, C walked past where the incident occurred. the body had been removed but there was alot of blood on the road still. the C went into shock and premature labour her baby was stillborn.
H: no proximity between Mrs B and motorcyclists as she was not involved in the accident.

Question 11

what two cases are used for the third stage of the Caparo test

Answer 11

Hill v CC of West Yorkshire

Robinson

Question 12

explain the case of Hill v CC West Yorkshire

Answer 12

F: Mother of the final victim made a claim because the police had let the accused go and he killed her daughter
H: it wasn’t fair, just or reasonable to impose a duty on the grounds of public policy. this would lead to defensive policing and might open the ‘flood gates’ to more claimants.

Question 13

explain the case of Robinson

Answer 13

F: when arresting a suspected drug dealer police were struggling and knocked over an old lady who suffered injuries
H: the police don’t owe DoC, to protect the public from harm by failing to prevent crime. the police may therefore be under a duty of care to protect an individual from danger of injury which they have themselves created.

Question 14

after the case of Blyth v Birmingham Waterworks Co what is the definition of negligence

Answer 14

“negligence is the omission to do something which a reasonable man, guided upon these considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do”

Question 15

what are the 4 degrees of skill in breach

Answer 15

1. adult professionals
2. adults
3. adult learners
4. children

Question 16

explain the case of Bolam v Friern Hospital Management Committee in relation to adult professionals with the test

Answer 16

F: electric treatment for depression the patient not given relaxant drugs and fell off the table breaking their leg.
T: what would the ordinary skilled professional have done?
H: “A man need not possess the highest expert skill, it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”

Question 17

what case says that trainee drs owe the same standard of care as qualified drs

Answer 17

Wilsher v Essex

Question 18

explain the case of Wells v Cooper in relation to adults

Answer 18

F: D fitted a door handle in his home. C a visitor pulled on the handle and it came away in his hand causing the visitor to fall down several stairs
H: the D was to judges against the standards of a reasonable competent person doing that activity (not against the standards that would be expected of a professional carpenter) this was the sort of job that a reasonable householder might do for himself and that was the appropriate standard.

Question 19

explain the case of Nettleship v Weston in relation to adult learners

Answer 19

F: a learner driver mounts a curb and collides with a lamp post
H: even a learner is expected to take the same standard of care of the ordinary average driver.

Question 20

explain the case of Mullin v Richards in relation to children

Answer 20

F: two 15yr old girls play fighting with plastic rulers one breaks and C is blinded in one eye from a shard of plastic
H: the risk is not one that a reasonable 15 yr. old would appreciate.

Question 21

explain the case of Paris v Stepney borough council in relation to the special characteristics of the claimant

Answer 21

F: Paris was blind in 1 eye when working for the D a piece of metal blinded him in his other eye
H: a reasonable employer would have provided protective eyewear

Question 22

explain the case of Bolton v Stone that links to the low magnitude of the risk

Answer 22

F: women walking past a cricket ground as hit on the head by a cricket ball, the wall around the ground was 5 meters high
H: magnitude of the risk was low as there had only been 6 balls hit out of the ground in the past 25yrs and no one had been injured before. ground not liable

Question 23

explain the case of Miller v Jackson that links to the high magnitude of the risk

Answer 23

F: houses were next to a cricket ground which has been there 70 years one house had garden wall 102 feet from the wicket and cricket balls kept landing in their garden. Cricket clubs erected a high fence but 8/9 balls a year went into the garden causing damage
H: the magnitude of the risk was high as there had been 8/9 balls in the past year.

Question 24

explain the case of Latimer v AEC in relation to the cost of precautions

Answer 24

F: C worked in D’s factory and slipped up on the factory floor. the factory floor became flooded and the water had mixed with oil. D’s put up warning signs mapped up and placed sawdust in the most used places.
H: the risk could only have been eliminated by closing the factory. this was an unreasonable cost to D.

Question 25

explain the case of Day v High Performance Sports that links to the importance of the activity

Answer 25

F: claimant fell whilst climbing on an outdoor climbing wall, she had failed to tie onto her top rope and then to her belayer on the ground below. the DM tried to rescue her- the way he did so was inappropriate and caused her to fall. The claimant was a reasonably experienced climber and she had confirmed acceptance when she joined of the conditions of use and rules of centre which clearly put the burden on her to ensure that she was tied an when she climbed.
H: the centre had assessed the risk and done everything in their power to prevent it e.g. extra training for staff and health and safety assessment and the rescue was done in an emergency (therefore they had not breached their duty)

Question 26

what is the name of the act that addresses ‘reasonable care’

Answer 26

the compensation act 2006

Question 27

explain the case for factual causation in negligence

Answer 27

Barnett v Chelsea and Kensington hospital management committee.
F: C’s went to casualty with stomach pains but the duty doctor sent them home (they weren’t spoken to or examined) they had been drinking tea that contained arsenic and 1 died the following day.
H: but for test failed as failure to examine the men hadn’t been proved to the factual cause of death (even though duty and breach had been proved)

Question 28

explain the case used for multiple causes

Answer 28

Wilsher v Essex AHA
F: a premature baby was given too much oxygen by a junior doctor. the baby suffered from a condition affecting his retina which left him totally blind in one eye and partially sighted in the other. the condition could have been caused by the excess oxygen he had been exposed to or it could have been caused by 4 other factors unrelated to the oxygen, but related to the premature birth.
H: D’s negligence could not be proven to be more of a cause than the other causes.

Question 29

what 2 things does the test for remoteness consist of

Answer 29

remoteness of damage (reasonable foreseeability) and egg shell test (thin skull)

Question 30

explain the case of the Wagon mound

Answer 30

F: D spilt a quantity of oil while re-fuelling and the oil spread over c’s wharf. 2 days later c was carrying out repair work on ship which involved welding. Molten metal fell onto cotton waste floating on the water and ignited the oil C’s wharf was severely damaged by the fire
H: damage from the oil was foreseeable and responsible but damage by the fire was too remote and wasn’t foreseeable and they weren’t found liable.

Question 31

explain the case of hughes v lord advocate

Answer 31

F: 2 boys- 8 and 10- went exploring an unattended man hole. the man hole had been left by workmen taking a break. it was surrounded by a tent and some paraffin lamps were left to worn road users of the danger. the boys took a lamp down the hole. one of them dropped the lamp and an unforeseeable explosion occurred resulting in extensive burns.
H: the method of injury doesn’t have to be reasonably foreseeable only the type of damage. a child being burnt was foreseeable (the explosion doesn’t need to be)

Question 32

explain the case of Smith v Leech Brain and co ltd

Answer 32

F: burnt with molten metal on lip whilst working for D which started a dormant cancer
H: the employer was liable as death from cancer wasn’t foreseeable but the burn was. (take your victim as you find them)

Question 33

what is Res Ipsa Loquitur

Answer 33

the thing speaks for itself instead of C proving D was negligent D must prove they weren’t negligent (burden of proof shifts to D) used when C finds it hard to remember what happened

Question 34

explain the case of Scott v london and st katharine dock

Answer 34

F: claimant hit by 6 heavy stacks of sugar which fell from the d’s warehouse crane this could only have happened through D’s negligence
H: the facts spoke for themselves and therefore it was up to the defendant to prove that he wasn’t negligent.

Question 35

in scott the court said that res ipsa loquitur could only apply where 3 conditions were met list these conditions

Answer 35

1- D must be in control of the situation which caused the injury
2-the injury was more likely than not to have been caused by negligence
3- there was no other explanation.

Question 36

explain the case of Mahon v osborne

Answer 36

F: claimant had a swab left inside him after having an operation in hospital
H: RIL applied as a swap is not left in a patient without negligence and hospital were wholly in control of the negligent act.

Question 37

explain the case of Mansfield v weetabix

Answer 37

F: d owners of lorry their driver suffered from lack of glucose to the brain caused by a tumour he was unaware of effect on his driving C suffered damage to their shop when lorry left road on a bend RIL applied and burden was on D to prove they were not negligent
H: the driver didn’t know and couldn’t reasonably have known of his illness that was the cause of the accident. therefore he wasn’t at fault. his actions didn’t fall below the standard of care required d managed to prove they weren’t negligent and case was rebutted.