Negligence Flashcards
What is the first stage of negligence?
Duty of care
Write an answer for duty of care assuming there is established precedent.
To prove if D was negligent, C must prove that D owes them a duty of care.
Robinson v Chief Constable of West Yorkshire Police (2018) stated that where there is established precedent, there is no need to consider the three-part Caparo test, instead, the two-part Robinson test is used:
Firstly, was it reasonably foreseeable that D’s act or omission might cause loss to another? (Kent v Griffiths). Here, it was reasonably foreseeable because…
Secondly, is this a situation where previous precedent has established that there is a standard duty of care? Here, the precedent from the case of (state case with established duty) is appropriate.
Name the established precedents:
Doctor to patient - (Sidaway v Bethlem Royal Hospital)
Road users to other users of road / pedestrians / drivers etc - (Nettleship v Weston)
Teacher to pupil - (minors v Bedfordshire)
Transport operators to passengers - (Silverlink Trains v Collins-Williamson)
Custodian to prisoner - (Ellis v HO)
Write an answer for duty of care assuming there is no established precedent:
As there is no established duty of care, the three-part Caparo test must be considered. (UNLIKELY TO BE THIS)
The first test is whether it is reasonable foreseeable that D’s acts or omissions would cause damage to C. This is an objective test. In Kent v Griffiths it was held that injury towards C was likely if an ambulance was running late. Here, harm was reasonably foreseeable because… (apply fully)
The second test is whether there was sufficient proximity between D and C. This does not have to be physical closeness, it can be a connection through time, space or relationship. In Bourhill v Young, it was held that D and C were not proximate as they were neither close in time nor space, and no relationship existed. However, in Watson v BBBC it was held that there was proximity as C had a relationship with D. Here, there is sufficient proximity because… (Apply whichever of those two case examples are relevant).
The third test is whether it is fair, just and reasonable to impose a duty. This is essentially a public policy test that aims to stop the floodgates from opening. This was highlighted in Hill v CC of WY Police.
Here, it is fair, just and reasonable to impose a duty because…
What is the second stage of negligence?
Breach, D must have breached the duty of care to be liable.
Write a model answer for breach.
Once a duty has been established, it must be proved that D breached this duty of care. The first element is the reasonable man test whereby D will be judged against the standard of a reasonable person. This was explained in Blyth v Birmingham Waterworks as doing something the reasonable person wouldn’t do or not doing something the reasonable person would do. Here, D would be judged against the reasonable… (state type of reasonable man)
Also, apply relevant risk factors to determine whether D fell below this standard in the circumstances:
(Essential) - The first risk factor is the magnitude of risk. The principle here is the higher the risk of harm, the higher amount of precaution should be taken. Low risk, low chance of breach. This was demonstrated in Bolton v Stone, where all precautions had been taken to ensure risk is low. Here, there is a high likelihood of harm because…
The second risk factor asks if C has any special characteristics, if they do then D should take more care. This was seen in Paris v Stepney where the employer didn’t consider C’s blind eye and thus did not take further steps for safety of C. Here, (state special characteristics if there are any).
(Essential) - The third risk factor assesses if all practical precautions had been taken. The courts will balance the risk involved against the cost and effort of taking precautions. This was demonstrated in Latimer v AEC where it was held that all practical precautions had been taken place through the use of a warning sign. Here, not all / all practical precautions had been taken because…
The fourth risk factor is social importance, is there public benefit in taking the risk? (Watt v Hertfordshire). Here, as D was performing a socially important activity of … (state) , the standard of care is lower because … (saving of a life justifies taking risk etc).
Therefore, D has / has not fallen below the expected standard and breached their duty owed to C.
What are the different types of reasonable man?
Skilled activity - Wells v Cooper
Professional - Bolam
Child - Mullins v Richards
Incompetence / Inexperience - Nettleship v Weston
What is the third stage of negligence?
The breach must cause a forseeable type of loss or damage.
Write a model answer for the breach causing a foreseeable type of damage:
The breach must cause a forseeable type of loss or damage.
The first test for this is factual causation. Here C must show that ‘but for’ D’s negligence the damage would still have happened? (Barnett v Chelsea and Kensington Hospital). Here, but for… (apply)
(IF RELEVANT) - There may be break in the chain of causation (NAI) which renders the initial act insignificant (Knightly v Johns). Here, there are novus actus interveniens because…
(MUST APPLY) - D is liable if any type of damage that is reasonably foreseeable but not for damage that isn’t. If damage is too remote, there is a very remote chance of it happening and therefore not foreseeable. This was demonstrated in the Wagon Mound case where damage caused by fire was too remote. Here, the type of damage is foreseeable because… (apply)
(IF RELEVANT) - Even if the extent of injury is unforseeable, as long as the type was foreseeable the damage is not too remote (Bradford v Robinson - frostbite not too remote). Here, extent may be unforseeable but the type is foreseeable as it is…
(IF RELEVANT) - As long as the damage is foreseeable, it does not matter if it occurred in an unforeseeable manner.
Write a model answer for the breach causing a foreseeable type of damage:
The breach must cause a foreseeable type of loss or damage.
The first test for this is factual causation. Here C must show that ‘but for’ D’s negligence the damage would still have happened (Barnett v Chelsea and Kensington Hospital). Here, but for… (apply)
(IF RELEVANT) - There may be break in the chain of causation (NAI) which renders the initial act insignificant (Knightly v Johns). Here, there are novus actus interveniens because…
(MUST APPLY) - D is liable if any type of damage that is reasonably foreseeable but not for damage that isn’t. If damage is too remote, there is a very remote chance of it happening and therefore not foreseeable. This was demonstrated in the Wagon Mound case where damage caused by fire was too remote. Here, the type of damage is foreseeable because… (apply)
(IF RELEVANT) - Even if the extent of injury is unforeseeable, as long as the type was foreseeable the damage is not too remote (Bradford v Robinson - frostbite not too remote). Here, extent may be unforeseeable but the type is foreseeable as it is…
(IF RELEVANT) - As long as the damage is foreseeable, it does not matter if it occurred in an unforeseeable manner (Hughes v Lord Advocate). Here, it happened in an unforeseeable way but the damage was still foreseeable as…
(IF RELEVANT) - Thin skull rule applies, therefore, if C is more susceptible to injury, D is still liable as they must take C as they find them (Smith v Leech Brain). Here, D is more susceptible because…
Therefore, here, the damage of (state was C has suffered) is not too remote because (state why it is of type of harm expected).
