Negligence

Question 0

Doonoghue v Stevenson (1932)

Answer 0

Lord Atkin - Duty of Care and the Neighbour test.
A duty of care is owed in situations which there is:
1) Reasonable foresight of harm.
2) Relationship of proximity

The categories of negligence are never closed - Lord Macmillan.

Question 1

Negligence Claim

Answer 1

Claimant must show that the following criteria are met:

1) D owes to C a duty of care.
2) Duty has been breached.
3) D’s breach of duty has caused C to suffer loss or damage of a relevant sort
4) Damage is caused in law by D’s negligence/not too remote/within scope of duty.

Question 2

Home Office v Dorset Yacht (1970)

Answer 2

Was a duty of care owed by the prison authorities in respect of the actions of youth offenders in custody?
House of Lords held that there was a duty of card owed by Home Office to the plaintiff.
Extension of the neighbour principle into novel situations.
1) That could extend to an omission, a failure to act in order to prevent a third party action. (Youth offenders in custody were on a day trip and subsequently damaged plaintiff’s property).
2) The Home Office is a public body and thereby subject to statutory and resource constraints.

Question 3

Anns v Merton London Borough Council (1978)

Answer 3

Lord Wilberforce introduced a universal test to determine whether a universal duty of care was owed.
2 part test:
1) Was the loss reasonably foreseeable and did there exist a relationship of proximity. If so prima facie- a duty of care exists.
(Elevation of the neighbour test)
2) Are there any considerations that negate/reduce/limit scope of liability/ duty of care - this is a case of policy, not legal rules. The biggest policy issue being whether a decision in favour of a duty of care would lead to the floodgates of litigation opening up.

Question 4

Junior Books v Veitichi (1983)

Answer 4

Possibly the high water mark of negligence liability.
Duty of care extended to a duty to avoid causing pure economic loss because of defects in work.
- expansion of the duty of care and neighbour principle

However it has not been followed and must now be seen as conferred to its own facts.

Question 5

Lord Keith Privy Council

Answer 5

-for the future it should be recognised that the the two stage Anns test is not to be regarded as in all the circumstances a suitable guide to the existence of a duty of care.

Question 6

Caparo Industires v Dickman and Others (1990)

Answer 6

Three ‘stage’ test: (each category is of equal weight)

1) harm to the plaintiff/claimant must be foreseeable.
2) the situation must be one of proximity or neighbourhood.
3) the situation must be one in which it is ‘fair, just and reasonable’ to impose a duty of care.

Question 7

Caparo

Answer 7

Incremental approach- novel situations are first compared to previously existing categories of duty see Bhamra v Dubb.

Question 8

Omissions: Positive Duties to Act

Dorset Yacht v Home Office 1970-

Answer 8

Was a duty of care owed by the prison authorities in respect of the actions of youth offenders in custody?
-House of Lords held by a majority of 4-1 that there was a duty of care owed by the Home Office to the plaintiff.
-Extended the Donoghue neighbour principles into circumstances that were novel.
-Firstly the wrong against the plaintiff had been done by a third party - so any liability would be based on an omission.
-Secondly, the D was a public Body.
HELD THAT IT WAS FORESEEABLE THAT HARM WOULD RESULT FROM THEI PR INACTION.

Question 9

Stovin v Wise (1996)

Answer 9

Stovin was injured whilst knocked off his bike by Wise.
Held that Wise was 70% responsible; council 30%: council appealed.

Held: that the council were not liable as liability was linked to an omission.
Lord Hoffman: there are sound reasons why omissions require difference treatment from positive conduct. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes.

Question 10

Positive duties to protect convention rights

Osman v UK
Van Colle v Chief Constable of the Hertfordshire Police

Answer 10

Osman v UK- a positive duty to prevent death (article 2 right to life) arises for public authorities only when the authority knew or ought to have known of the existence of a real and immediate risk to life.

Van Colle under the Osman rule was held that there was no breach of a positive duty to act as there was no immediate threat to the life of the deceased would have been apprehended by a reasonable public authority under the circumstances.

Question 11

Mitchell v Glasgow City Council (2009)

Answer 11

-pursuant argued that the deceased ought to have been warned that neighbour had previously threatened to kill.
-was there a positive duty to warn?
Lord Brown established circumstances where there may be liability in negligence for the criminal acts of another:
I) where there is vicarious liability.
Ii) where there is an obligation to supervise
iii) where the defendant creates the risk of danger.
Iv) where there is an assumption of responsibility.

Question 12

Objective standard of Care

Answer 12

Moran: ‘the reasonable person is the common law’s characteristically ingenious solution to the complex problem of articulating a standard of appropriate attentiveness to others across an almost infinite variety of individuals and situations’

Question 13

Nettleship v Weston 1971

Answer 13

D was a learner driver.
Given lessons by a family friend, froze at wheel and crashed the vehicle causing serious harm to the plaintiff instructor.
-CA held that the D’s conduct fell below the required standard of care- SAME OBJECTIVE STANDARD OWED BY EVERY DRIVER.
The lack of skill or expertise is not a defence - duty of care is measured objectively by the care to be expected of an experienced, skilled and careful driver.

Question 14

Objective standard of care for Children.

Mullin v Richards (1998)

Answer 14

Applicable standard of care will be determined according to age= children will be held to the standard of the typical child of their own age.

Mullin: plaintiff suffered an injury to her eye when a plastic ruler broke during a mock sword fight at school.
P’s claim against education authority was unsuccessful but judge awarded damages against her fellow pupil.
However - COURT OF APPEAL REVERSED THE DECISION FOR DAMAGES.
AS IT WAS HELD THAT IT WAS NOT AN ORDINARY EVENT FOR A 15 YEAR OLD TO FORESEE THE DAMAGE.

Question 15

Tomlinson v Congleton 2003

Answer 15

House of Lords made it clear that individual claimants retain personal responsibility for their own safety.
Hoffman makes it clear that there is only liability in tort of there has been a breach of duty by the D.

Question 16

Black v Galloway 2004

Answer 16

CA held that there had been no breach of duty when teenagers engaged in ‘horesplay’ with sticks and there was a subsequent eye injury.
Participation in the dame was thought to make its tacit rules consensual.

Question 17

Orchard v Lee 2009

Answer 17

Court of Appeal held that a 13 year old boy who had injured a member of school staff while running backwards during a game of tag had not breached his duty of care to the adult supervisor.

Question 18

Duty of care: Sporting events

Blake v Galloway

Sporting injuries = test for breach of duty requires something more than a simple error of judgement or lack of skill.
Because of the consensual nature a less demanding standard is imposed on the defendant.

Answer 18

CA held that there had been no breach of duty when teenagers engaged in ‘horesplay’ with sticks and there was a subsequent eye injury.
Participation in the dame was thought to make its tacit rules consensual.

Question 19

Bowlam Test - duty of care of a professional skill.

Bowlam v Friern Hospital Management Company (1957)

Answer 19

Standard of care is night if the D is performing actions which require a special skill.

• the test is the standard of the ordinary skilled man exercising and professing to have that special skill.
• it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular act.

McNair J: A MAN IS NOT NEGLIGENT IF HE IS ACTING IN ACCORDANCE WIFH SUCH A PRACTICE, MERELY BECAUSE THERE IS A BODY OF OPINION WHO WOULD TAKE A CONTRARY VIEW.

Question 20

Bowlam test

Answer 20

The Bowlam test has led to criticism that it is there to protect the doctors, particularly with McNair’s judgement.
That whenever a tricky issue within medical negligence arises the habitual response of the courts has been to reach for the Bolam test and to resist making their own judgements.

Question 21

Boilitho v City and Hackney Health Authority 1997

Answer 21

2 year old boy suffered brain damage and later died as a result of cardiac arrest.
Died in hospital in which a doctor didn’t attend to him and his severe needs.
It was the plaintiffs case that the doctor should have attended the little boy and that if he had have been incubated this would have prevented the subsequently fatal cardiac arrest.

Lord Browne Wilkinson: the final judgement on breach of duty lies with the court and NOT medical practitioners.
There are greater signs of judicial willingness to question the practices of the medical profession.

Question 22

Establishing breach: when does the reasonable person take risks?

Wagon Mound No:2

Answer 22

Owners of 2 damaged ships brought an action against the charterer of Wagon Mound.
Action was successful despite the first claim being unsuccessful.
The ignition of the oil although unlikely, was foreseeable.
The question the Privy council considered was whether the risk of spilling the oil was justifiable even though the risk was so low.
Privy Council held that the spillage of the oil was negligent despite the fact that sometimes a person will take a risk that is foreseeable but worthwhile, however in this situation there was no justification for releasing oil into the harbour so that even if the risk of ignition was tiny, there was no good reason for having disregarded it.

Question 23

Compensation Act 2006, Section 1 risks and desirable activities.

Answer 23

Offers very little explanation or real bee rival effect.
However been said by the government that S1 sends out the message that good risks should go ahead and not intended to change the law.
Rather odd for a statute to not change the law.

Question 24

Res Ipsa Loquiter -and absence of evidence of fault.

Scott v The London and St Katherine Docks Company

Answer 24

= the thing speaks for itself.
- the maxim simply permits that in some circumstances, the circumstances themselves may be treated as evidence of carelessness .

Scott: for the maxim to be applicable it must be shown that:

a) that the D is in control of the thing that caused the injury to the claimant.
b) that the accident would not have occurred in the ordinary course of events without negligence.
c) that there is no other explanation for the accident.

Question 25

Balance of probabilities and establishing fault.

Answer 25

It is for the claimant to establish that all elements of a cause of action are present.
the claimant must also show that, on balance, that the negligence cause the harm.

Question 26

Blyth v Birmingham Water Works 1856.

Answer 26

Alderson stated that ‘negligence is the omission to do something which a reasonable man, guided upon those conditions which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a reasonable or prudent man would not do’.

Question 27

Mansfield v Weetabix 1998

Answer 27

The Court of Appeal held that where a medical reason that was not, and could not have reasonably been known by the defendant brought his performance below that objective standard of care- was a factor that could be considered in deciding the D’s negligence.

Question 28

Public bodies as defendants: Duty of care and the police.

Rigby v Chief Constable of Northamptonshire 1985

Answer 28

-police used flammable CS gas in an operation to flush a suspect out of a building.
Police were held liable in negligence for damage caused by the resulting fire because they had failed to take the usual precautions of having fire fighting equipment standing by.
POLICE WILL BE HELD TO OWE A DUTY OF CARE WHEN THEY DIRECTLY CAUSE DAMAGE.

Question 29

Hill v Chief Constable of West Yorkshire 1989

Answer 29

No duty of care was owed by the police to prevent victimisation by the Yorkshire Ripper.

The courts have been slow to impose duties of care in situations arising of police liability for harm a arising from the investigation and suppression of crime.

Question 30

Osman v United Kingdom 1998

Answer 30

The ECHR held that giving a blanket immunity to the police was contrary to article 6 right of access to the courts.

Question 31

Unborn child as claimant: Congenital Disabilities (Civil Liability) Act 1976

Answer 31

Legal liability for damage suffered by a child before birth came to pressing public attention with the Thalidomide crisis in 1960’s.
The Act applies to damage to a child born alive, caused by negligence.

• during the birth process, or
• during pregnancy, or
• prior to conception, and
• includes damage incidental to fertility treatment.

Liability of the mother is not included unless related to her driving of a car.