2. Negligence

Question 1

Three elements for cause of action in negligence

Answer 1

1. D owed C duty of care
2. D breached that duty
3. Breach caused damage to the C

Question 2

What are seven examples of an established duty situation, in which the first element is assumed and does not need to be proven?

Answer 2

1. Driver to other road users
2. Doctor to patients
3. Teacher to pupils
4. Parent to child
5. Solicitor to client
6. Employer to employee
7. Manufacturer to consumers

Question 3

What is a novel duty situation?

Answer 3

Where there is no established duty, and the first element must be proven

Question 4

What are the three element test is required to establish a duty in a novel duty situation?

Answer 4

1. Foreseeability
2. Proximity
3. Whether fair, just and reasonable to impose a duty
   (Caparo test)

Question 5

What is the requirement of foreseeability in establishing a duty, under the Caparo test?

Answer 5

Defendant’s negligence created a foreseeable risk of harm to this claimant

Question 6

What is the requirement of proximity in establishing a duty?

Answer 6

There must be sufficient cause and effect relationship between the defendant’s conduct and the harm suffered

Question 7

Five exceptions to general rule preventing liability for omissions

Answer 7

1.Where the defendant owed a statutory duty;

2.Where the defendant owed a contractual duty;

3.Where the defendant has sufficient control over the claimant;

4.Where the defendant assumes responsibility for the claimant; and

5.Where the defendant creates the risk through an omission.

Question 8

In which four situations will a defendant be liable to a claimant for the harm caused by a third party?

Answer 8

1. Special relationship between the claimant and defendant. (ie. contract or via assumption of responsibility).
2. Special relationship between the defendant and 3rd party (Home Office v Dorset Yacht).
3. Failure to prevent known danger
4. D created risk
   (ie. failure to secure property from subsequent burglars).

Question 9

What duty and standard of care are emergency services held to?

Answer 9

Duty to exercise such case and skills as was reasonable in all the circumstances.

• general principles apply, but court may place special bearing on social utility of D’s conduct.

Particularly:
* ambulance service: duty of care to respond to a 999 call within a reasonable time. Duty might not have been breached where the service properly exercised its discretion to deal with a more pressing emergency first

• The fire brigade owes no duty of care to attend a fire but if they do attend a fire, they owe a duty not to make the situation worse through a positive act.
• The police owe no duty of care to respond to emergency calls. However, police can owe a duty in other circumstances

Question 10

Where there are no analogous or similar precedents, what factors will the court take into consideration when establishing whether a DoC is owed?

Answer 10

• foreseeability [of harm]
• proximity [between parties]
• whether imposing such duty would be fair, just, and reasonable
  (Caparo test)

Question 11

What duty of care is owed by public bodies to the public?

Answer 11

only if satisfied via general principles - no special rules.

The liability of a public authority may be restricted by statute but the existence of a statutory power will not make a PA liable.

Question 12

What is the duty owed by a rescuer?

Answer 12

To not make the situation any worse

Question 13

What is the requirement for the harm suffered to be within the scope of the duty of care?

Answer 13

If the harm was not within the scope of the defendant’s duty of care, damages will not be recoverable even if the defendant owed a duty and acted negligently

Question 14

What is the standard of care in the context of breach of duty?

Answer 14

Defendant is required to take reasonable care, i.e. an objective and impersonal standard accepted of a reasonable person.

E.g. the objective standard of the reasonable driver.

Question 15

How is breach initially assessed?

Answer 15

Whether the defendant fell below a reasonable standard of care.

Question 16

What five factors will the court take into account in considering breach?

Answer 16

1. Cost of precautions
2. Likelihood of harm @ the relevant time of incident
3. Seriousness of injury
4. Social value
5. Common practice

Question 17

What is expected of a defendant the greater the potential harm?

Answer 17

The more precautions they must take

Question 18

Can an under-skilled defendant rely on their limitation to argue they were not in breach of duty?

Answer 18

No - test is impersonal
- Act ≠ the actor
E.g., Nettleship was judged against the standard of someone driving; not against the standard of a learner driver.

Question 19

What standard of care is expected from professionals?

Answer 19

Judged against reasonable person within that same skill or exercising same profession (Bolam test)

• Key question is whether a responsible body of professional opinion would have acted in the same way.

Question 20

How will the court consider whether a doctor breached their DoC by failing to disclose the risk associated with treatment?

What is the standard applicable and test?

Answer 20

Standard requires that “material information(subjective-objective test) be disclosed to the patient (Montgomery):
- anything reasonable person would attach significance to.
- anything D knows patient would particular patient would find significant.

Considered alongside Bolam test (McCulloch)
- Doctor’s failure to advise on alternative/variant treatments will not be negligent if such view is supported by a responsible body of medical opinion.

Question 21

What is the standard expected of a child defendant?

Answer 21

Standard of a reasonable child of the defendant’s age

Question 22

Will the standard of care be modified to account for a defendant’s illness/disability?

Answer 22

Yes, but ONLY IF the defendant had no knowledge or warning of his condition.
- requires a complete and unforeseeable loss of control or consciousness.

In the ordinary course, no - i.e., Dunnage v Randall

Question 23

When is there a breach of duty in a sports context?

Answer 23

Only a breach of duty where there is a reckless disregard for safety

Question 24

What are the three conditions for res ipsa loquitur to apply?

Answer 24

1. Absence of any explanation for the incident
2. Thing which caused the incident was under the control of the defendant, and
3. Incident would not normally happen if proper care was taken

Question 25

How can a defendant rebut an inference of res ipsa loquitur?

Answer 25

By showing that they did exercise reasonable care

Question 26

What is the admissibility of convictions for criminal offences involving negligence?

Answer 26

They are admissible in civil claims arising from the same incident

Question 27

What is required for causation?

Answer 27

Claimant must show that defendant’s breach of duty caused the loss

Question 28

What are the three stages is establishing causation?

Answer 28

1. Factual causation (but for)
2. No new intervening acts
3. Damage not too remote

(2 and 3 are collectively called legal causation)

Question 29

What is the test for factual causation?

Answer 29

But for the defendant’s breach of duty, the claimant would not have suffered the loss

Question 30

When does the but for test also apply?

Answer 30

When there is more than one possible alternative cause of the claimant’s loss

Question 31

What is the standard of proof for causation?

Answer 31

balance of probabilities (50%)

Question 32

What must the claimant prove when one injury results from different causes acting together?

Answer 32

Claimant must prove that defendant’s breach of duty made a material (more than merely negligible) contribution to the claimant’s loss.

Question 33

Where an injury is divisible, how are damages apportioned, and what does this mean for the claimant?

Answer 33

Damages are apportioned between the defendants according to the share of injury each of them caused.

A claimant must therefore sue all defendants in order to recover in full.

Question 34

How does this differ where an injury is indivisible?

Answer 34

Claimant can recover damages in full from any of the defendants

Question 35

If a claimant recovers in full from one defendant for an indivisible injury, what is the defendant’s option to recover money?

Answer 35

The paying defendant can recover a contribution from the others, having regard to the share of damage caused by each

Question 36

What is the second defendant’s liability where they harm a person already harmed by a previous defendant?

Answer 36

Only to the extent that their negligence made the claimant’s damage worse than it already was

Question 37

What is the effect of a new intervening act?

Answer 37

It will break the chain of causation

Question 38

When will the intervening act of a third party break the chain of causation?

Answer 38

Only if it was not reasonably foreseeable

Question 39

When will the intervening act of the claimant break the chain of causation?

Answer 39

When the claimant acted entirely unreasonably

Question 40

Will an intervening natural event break the chain of causation?

Answer 40

Yes

Question 41

What is the test for remoteness of damage?

Answer 41

Whether the claimant’s damage was a reasonably foreseeable result of the defendant’s negligence

Question 42

What are the two exceptions to the basic rule of reasonable foreseeability with regard to remoteness of damage?

Answer 42

1. Egg shell skull
2. Similar in type rule

Question 43

What does damage found to be similar in type concern?

Answer 43

Where the claimant suffers a type of harm which is reasonably foreseeable, but the way in which it occurs is unforeseeable, they can still recover

Question 44

What are the four defences to negligence, and which are partial/complete?

Answer 44

1. Contributory negligence (partial)
2. Volenti non fit injuria (complete)
3. Necessity (complete)
4. Claim based on illegal act (complete)

Question 45

What is the definition of contributory negligence?

Answer 45

A failure by the claimant to take reasonable care for their own safety which contributes to their harm

Question 46

To avail of contributory negligence defence, does a defendant have to show claimant’s negligence contributed to the happening of the accident?

Answer 46

No, just that it contributed to the harm suffered

Question 47

What is the two part test for volenti non fit injuria?

Answer 47

1. Claimant had full knowledge of the risk, and
2. Claimant freely and voluntarily assumed the risk

Question 48

When will a claimant be capable of recovering for loss of chance?

Answer 48

Ordinary factual causation rules apply.

Claimant must show on a balance of probabilities that “but-for” defendant’s negligence, claimant would have had **51% or more **chance of ie. not developing illness.

Question 49

What specific exception still leads to liability for negligence even where causation cannot be proven?

Answer 49

Applies in the medical context, where there has been a failure to disclosure the risks associated with a medical procedure.
- immaterial that % of possible risk is extremely slim, but still be disclosed to patient.

Question 50

Can a defendant be liable where their negligence is only one of multiple competing causes (non-cumulative)?

Answer 50

Not unless it is in the context of mesothelioma/industrial context. Here you should apply material increase in risk (lower bar than material contribution).

Otherwise, need to meet but-for test if it is non-cumulative (which it will not).

Question 51

What is the case and importance of Wilsher v Essex - loss of chance (factual causation)

Answer 51

Doctor was not liable for his negligence in failing to monitor the oxygen in the blood of a premature baby, subsequently giving baby too much oxygen.
- Although too much oxygen is a known cause of condition baby later developed. Also, four other possible causes.
- No factual causation as doctors’ negligence = only 20% chance of being the actual cause.

Question 52

Where there are multiple sufficient causes, how fault apportioned between defendants?

Answer 52

In non-mesothelioma cases
- Reflect defendant’s fault/level of contribution.

cf. Mesothelioma (s.3 of Compensation Act)
- Liability is joint and several
- C can recover full losses from a single source, whilst D can sue other tortfeasors afterwards.

Question 53

Where there are cumulative causes, what is required for the material contribution test to be satisfied?

Answer 53

“material” - more than minimal.
- damage is indivisible, but based on cumulative factors, it is clear that

Question 54

In what context is the “material contribution” test relevant and when will it be satisfied?

Answer 54

where the damage is indivisible, and based on cumulative factors.
- threshold requires D’s act to be have ‘more than minimally’ contributed to harm.

Question 55

Bonnington Castings v Wordlaw - cumulative causes (factual causation)

Answer 55

D = liable
tortious and non-tortious dusts operated together in causing the claimant to develop a respiratory condition.

• Held that relevant question is whether on a balance of probs, D’s breach made a ‘material’ (more than negligible) contribution, which was satisfied on facts.

cf. cases where causes do not operate together - only one of them was the source of harm (ie. Wilsher)

Question 56

What are the three exceptions to the general ‘but-for’ rule?

Answer 56

1) Where cause of harm is cumulative (multiple agent)

2) Where there is one potential cause of harm (‘single agent’) - limited to industrial disease cases.

3) Loss of chance in the PEL context

Question 57

What two elements must a defendant prove to succeed under the defence of volenti?

Answer 57

1) claimant had full knowledge of the nature and extent of the risk; AND
2) Voluntarily accepted the risk

• mere knowledge of risk is insufficient.

Question 58

For the purposes of establishing a volenti defence, what is required for a claimant to be deemed to have sufficient knowledge of the risk?

Answer 58

• knowledge of the nature and extent of the risks.
• threshold is high - requires risk to be obvious and glaring. Judged on a subjective basis. (ie. Morris v Murray)

Question 59

In what three circumstances is a defendant unable to rely on a defence of consent?

Answer 59

1 - children
2 - persons lacking mental capacity to consent.
3 - Passengers in road traffic accidents where driver is negligent (statutory prohibition) e.g., a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result.

Question 60

What is the test for determining whether a player partaking in a sporting activity has consented to the risk of injury?

Answer 60

Was the risk inherent in that sport?

The courts have held that by willingly engaging in the sport, the claimant voluntarily agrees to the risks inherent in that sport but not to risks which are not inherent in that sport eg serious foul play in football.

Question 61

What is the test for determining whether a spectator partaking in a sporting activity has consented to the risk of injury?

Answer 61

Is there a reckless disregard for spectator’s safety, or was the risk inherent?

Spectators generally have consented to the risk of harm associated with watching sport, where damage is caused by an error of judgement or lapse of skill.(Cf. where there is a reckless disregard for spectators’ safety).

Question 62

By how much might a claimant’s damages be reduced where they contributed to their injuries?

Answer 62

25% reduction - injuries prevented
10% - injuries less servere
0% - no difference

• Froom guideline - seat belt wearing case, but applicable to accidents involving motorcycles and bicycles as well.

Question 63

For contributory negligence, what test is a rescuer’s conduct judged against?

Answer 63

• standards of a reasonable rescuer, and taken wholly unreasonable disregard for their own safety.
• reluctance by courts to punish rescuers.

Question 64

For contributory negligence, what factors are relevant when considering an employee’s CN?

Answer 64

• Look at conduct and working conditions.
• Reckless disregard for an employer’s rules by a employee is more likely to lead finding of C.N.

Question 65

What two elements are required to establish a defence of contributory negligence?

Answer 65

1) C failed to take reasonable steps regarding his own safety;
2) Such failure contributed to his injuries/damage

Question 66

For a defence of contributory negligence, what standard is a claimant’s conduct judged against in determining whether they failed to take steps concerning their own safety?

Answer 66

objective standard of a reasonable and prudent person. Except where:
1) the claimant is a child (judged against children their age).
2) allowances are made for claimants in emergencies
3) rescuers are generally protected from contributory negligence.

Question 67

What is required for contributory negligence to be established in suicide cases?

Answer 67

Claimant’s intentional act can reduce damages, but must be shown that (i) C remained of sound mind; and (ii) C retained personal autonomy.

Question 68

What must be shown to raise a successful defence of illegality?

Answer 68

• connection between the illegal activity and the claimant’s injuries.
• trio of relevant considerations in Patel

Question 69

For a defence of illegality, what are the three considerations established in Patel?

Answer 69

Overall: Would allowing recovery produce inconsistency or disharmony in the law? Using three conditions:
1) - the underlying purpose of the prohibition and whether it would be enhanced by denying claim;
2) other relevant public policy considerations that may be undermined by allowing the claim;
and
3) whether denial of the claim would be a proportionate response to the illegality.

Question 70

What must be shown to raise a successful defence of necessity?

Answer 70

Defendant must prove they were:
1) acting in an emergency to prevent ‘imminent’ harm (generally death or serious injury) to either/and claimant, themselves, or third-party.
- subjective test - whether D fears an imminent attack.
2) not at fault in causing the emergency
- necessity arose separately from his own negligence.

NB: It is rare for a defendant to rely on this defence, and it is unclear as to whether it applies to negligence.

Question 71

When will medical treatment break the chain of causation?

Answer 71

Very restrictive
- only do so where the treatment is so gross and egregious as to be unforeseeable (Wright v Cambridge Medical Group).

Question 72

When will a claimant’s own conduct break the chain of causation?

Answer 72

If their conduct is considered highly unreasonable.

• generally courts prefer to reduce the damages of a culpable claimant or allow contributory negligence partial defence rather than find that the claimant’s actions have broken the chain of causation.

Question 73

What is the correct test for remoteness of damage?

Answer 73

whether that type of damage (e.g., PI, property) is reasonably foreseeable,
- no need for the exact circumstances leading up to the damage to be known.

- Do not pick option premised on ‘direct’ result = old test.