2B - Negligence

Question 1

What did Lord Atkin say about Donoghue v Stevenson

Answer 1

‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’
Neighbour being ‘persons who are so closely and directly affected by my acts that I ought to reasonably have them in contemplation’

Question 2

What 3 elements must be present for a successful negligence claim?

Answer 2

1. A duty of care must be owed by the defendant to the claimant
2. The duty of care must have been breached by the defendant
3. The breach of duty by the defendant must have caused damage

Question 3

Step 1: Duty of care: Caparo v Dickman test

Answer 3

Foreseeability
Proximity
Policy

Question 4

Step 1: Duty of care: Caparo v Dickman test: Foreseeability meaning

Answer 4

It is reasonably foreseeable that a person would suffer damage or some harm if in C’s position?
This is an objective test

Don’t have to prove ‘the’ harm, just ‘some’ harm

Question 5

Step 1: Duty of care: Caparo v Dickman test: Proximity meaning

Answer 5

Is there proximity between the C and D?
- means closeness and in terms of nearness in space, time, OR relationship
Relationship only included professional relationships

Question 6

Step 1: Duty of care: Caparo v Dickman test: Policy meaning

Answer 6

Is it fair, just, and reasonable to impose a duty on the defendant?

Question 7

Step 1: Duty of care: Caparo v Dickman test: Foreseeability Case

Answer 7

Kent v Griffiths

Question 8

Step 1: Duty of care: Caparo v Dickman test: Proximity Cases

Answer 8

Leading case (space): Bourhill v Young
Failed - not a proximate relationship as she only heard the accident but didn't actually see it

Further case (time) : McLaughlin v O'Brian
Allowed - only so many people can say 'it's my husband and kids' and suffered harm 2 hours after the event

Question 9

Step 1: Duty of care: Caparo v Dickman test: Policy - public policy

Answer 9

Fair, just, and reasonable is sometimes discussed under the heading ‘public policy’.
Generally, courts don’t want to impose an unreasonable burden on police officers, social workers, etc who carry out difficult jobs by making them worried that a mistake could lead to a negligence claim
Not a public authority = not fair, just and reasonable

Question 10

Step 1: Duty of care: Caparo v Dickman test: Policy case

Answer 10

Hill v CC West Yorkshire

Question 11

Step 1: Duty of care: Caparo v Dickman test: Policy - what did Hill v CC West Yorkshire suggest

Answer 11

Indicated that ‘blanket immunity’ existed at least for the police and that generally the police do not owe a duty of care when executing their duties

Question 12

Step 1: Duty of care: Caparo v Dickman test: Policy - what do judges take into account when considering public policy issues?

Answer 12

• whether the floodgates of litigation would open
• whether imposing a duty would have a deterrent value
• whether the defendant is a public authority (eg police)
• protecting professionals, such as police

Question 13

Step 1: Duty of care: Caparo v Dickman test: Policy - since Hill v CC West Yorkshire what has happened?

Answer 13

There have been many cases showing that a blanket immunity from being sued no longer exists for the police and public authorities

Question 14

Step 2: Breach of duty: elements

Answer 14

• courts must decide what standard the defendant should have reached
• courts decide balancing various risk factors, if that standard was reached

Question 15

Step 2: Breach of duty: the standard - what is the standard

Answer 15

the defendant’s conduct is tested against the standard of care which could be expected of a reasonable person doing the same activity

Question 16

Step 2: Breach of duty: the standard - which case set out the standard?

Answer 16

Blyth v Birmingham Waterworks

Question 17

Step 2: Breach of duty: the standard - what was the ratio set out in Blyth v Birmingham Waterworks?

Answer 17

Negligence is the omission to do something which a reasonable man would do, or doing something that a reasonable man would not do

Question 18

Step 2: Breach of duty: the standard - learners

Answer 18

Learners are treated no differently than those with experience. They will be expected to meet the standard of a reasonable person

Question 19

Step 2: Breach of duty: the standard - learners: case

Answer 19

Nettleship v Weston

Question 20

Step 2: Breach of duty: the standard - children

Answer 20

Expected to meet the standard of a reasonable child their age

Question 21

Step 2: Breach of duty: the standard - children: case

Answer 21

Mullin v Richards

Question 22

Step 2: Breach of duty: the standard - professionals

Answer 22

Expected to meet the standard of the reasonable professional in the same profession

Question 23

Step 2: Breach of duty: the standard - professionals: case

Answer 23

Bolam v Friern Hospital

Question 24

Step 2: Breach of duty: the standard - professionals: warnings and consent

Answer 24

Montgomery v Lanarkshire Health

Question 25

Step 2: Breach of duty: what are the risk factors?

Answer 25

1. Potential likelihood of harm 2. Potential seriousness of harm 3. Cost and practicality 4. Social benefit

Question 26

Step 2: Breach of duty: risk factors - potential likelihood of harm

Answer 26

The more likely the harm, the greater the precautions the defendant must take

Question 27

Step 2: Breach of duty: risk factors - potential likelihood of harm: case

Answer 27

Haley v London Electricity Board

Question 28

Step 2: Breach of duty: risk factors - potential seriousness of harm

Answer 28

SPECIAL CHARACTERISTICS ONLY If the C has any special characteristics that makes the potential harm worse then the defendant must take greater precautions

Question 29

Step 2: Breach of duty: risk factors - potential seriousness of harm: cae

Answer 29

Paris v Stepney Borough Council

Question 30

Step 2: Breach of duty: risk factors - cost and practicality

Answer 30

D must only take the precautions that are in proportion to the size and seriousness of the risk

Question 31

Step 2: Breach of duty: risk factors - cost and practicality: case

Answer 31

Bolten v Stone

Question 32

Step 2: Breach of duty: risk factors - social benefit

Answer 32

Where there is a public benefit to taking the risk there can be less precautions taken

Question 33

Step 2: Breach of duty: risk factors - social benefit: case

Answer 33

Watt v Herts CC

Question 34

Step 3: Damage: elements

Answer 34

The 'damage' could be injury to a person or damage to property 1. Factual causation ('but for' test) 2. Legal causation ('remoteness' test, intervening acts, thin skull rule)

Question 35

Step 3: Damage: factual causation

Answer 35

'But for' the actions of the defendant, would the harm or damage to the claimant have occured?

Question 36

Step 3: Damage: factual causation - case

Answer 36

Barnett v Kensington and Chelsea Hospital

Question 37

Step 3: Damage: legal causation - remoteness test

Answer 37

focuses on whether the type of damage to the claimant was reasonably foreseeable as a result of the defendant's actions If its not reasonably foreseeable = too remote

Question 38

Step 3: Damage: legal causation - remoteness test: case

Answer 38

Wagon Mound No.1

Question 39

Step 3: Damage: legal causation - what happens after establishing the damage was reasonably foreseeable?

Answer 39

It does not matter that the type of damage occurred in an unusual way or to a greater extent than expected, the defendant is still liable

Question 40

Step 3: Damage: legal causation - what happens after establishing the damage was reasonably foreseeable: cases

Answer 40

Bradford v Robinson Rentals (lorry driver in the cold) | Hughes v Lord Advocate (boy and paraffin lamp)

Question 41

Step 3: Damage: legal causation - intervening acts

Answer 41

Unlikely to come up in the exam | Based on the idea of foreseeability and therefore is the same as criminal law

Question 42

Step 3: Damage: legal causation - intervening acts: case

Answer 42

Scott v Shepherd (fireworks)

Question 43

Step 3: Damage: legal causation - thin skull rule

Answer 43

Defendant must take the claimant as he finds him

Question 44

Step 3: Damage: legal causation - thin skull rule: case

Answer 44

Smith v Leech Brain