TORTS - NEGLIGENCE

Question 1

Defined where?

Answer 1

Blyth v Birmingham Water Works Company (1856)
“omission to do something that a reasonable and prudent man would not do.”

Question 2

In order to prove negligence, the plaintiff must prove;

Answer 2

1. The defendant owed a duty of care
2. There was a breach in that duty of care
3. Plaintiff suffered loss or damage as a result of that breach

Question 3

Duty of care?

Answer 3

Donoghue v Stevenson (1932)
- Neighbour test
- “you must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour.”

Question 4

Donoghue v Stevenson (1932) - who is your neighbour?

Answer 4

Person who will be directly impacted by the act or omission

Question 5

Donoghue v Stevenson (1932) - what is reasonably foreseeable?

Answer 5

Will be determined by the circumstances of the case.

Question 6

Who has the onus of proof to show who was negligent?

Answer 6

• On claimant to show defendant was negligent
• Some instances where facts strongly prove negligence, therefore upto defendant to prove otherwise.

Question 7

Breach of duty of care, courts will consider;

Answer 7

1. Magnitude of the risk
2. Ease of which risk could be eliminated
3. State of technical or scientific knowledge

Question 8

What are the defences to negligence?

Answer 8

1. Self defence
2. Act of god
3. Inevitable accident
4. Necessity
5. Contributory Negligence
6. Statutory Authority
7. Limitation
8. Volenti non fit injuria

Question 9

Self defence as defence?

Answer 9

• Person may use force to defend themselves, property, possessions or their family against unlawful violence,
• Self defence must be in line with the harm they would have suffered.

Question 10

Volenti non fit injuria?

Answer 10

• Hall v Brooklands Motor Racing Club 1933(court ruled that voluntarily accepted the risks as motor racing is dangerous sport)
• Needs to be demonstrated that claimant knew of the risk & willingly accepted.

Question 11

Necessity?

Answer 11

• Carried out acts which were reasonable to prevent person or property from danger.

Question 12

Statutory Authority?

Answer 12

• If statute permits negligent act.

Question 13

Limitation?

Answer 13

• Limitation Act 1980, if claims for tort property damage must be brought within 6 years.
• Defence to limitation that if outwith period allowed by law, may be defence here.

Question 14

Contributory Negligence?

Answer 14

• No longer a liability, however damages for compensation can be reduced if CN is shown.
• Froome v Butcher (1976), car crash, seat belt, 25% reduction in damages.

Question 15

Act of God?

Answer 15

• Must involve natural forces (earthquake etc), acting without human intervention.

Question 16

Inevitable accident?

Answer 16

• Accident occurred that could not have been avoided by any reasonable precautions.
• Stanley v Powell (1891) , shooting party fired at pheasant, shot hit off tree & injured claimant.