Elements of Negligence Flashcards
(23 cards)
1
Q
What is negligence?
A
- A breach of duty of care which results in a damage
2
Q
What is the public policy of duty of care?
A
- There needs to be a test of negligence which allows compensation yet not allow excessive claims
3
Q
What are the three elements of negligence?
A
- There was a duty of care owed to the claimant
- The duty of care has been breached
- The breach of duty has caused the damage
4
Q
What is the first element of negligence? What are key cases that established this?
A
- There must be a duty of care owed to the claimant, this sets out a legal relationship
- The neighbor principle was established in (Donoghue v Stevenson). This means that you must take reasonavle care to avoid acts or omissions that would reasonably foreesee to injure your neighbor
- The Caparo Test (Caparo v Dickman) is used when this is too dificult to apply
5
Q
What is the Caparo Test?
A
- Was the damage or harm reasonably foreseeable? This is based on the reasonable person test. This is seen in (Kent v Griffiths)
- Is there a sufficiently close relationship between the claimant and defendant? There must be a link between the two parties. This is seen in (Bourhill v Young) and (McLoughlin v O’Brien)
- Is it fair, just and reasonable to impose a duty onto the defendant? It is often not reasonable to impose a duty of care on public authorities. This is seen in (Hill v Chief Constable of West Yorkshire)
6
Q
What is the second element of negligence?
A
- The duty of care has been breached
- This is based on the objective standard of a reasonable person, this can be a reasonable person such as a driver or doctor
- The court also needs to decide if there is any special characteristics that the defendant has
7
Q
What is the Bolam test?
A
- The Bolam Test can be used to decide whether a professional has breached their duty of care
- This was established in (Bolam v Friern Barnet Hospital Management Committee)
1. Does the defendant’s conduct fall below the standard of the ordinary competent member of the profession?
2. Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant? - This is seen in (Nettleship v Weston) and (Mullins v Richards)
8
Q
What are risk factors that may increase or decrease the standard of care?
A
- Has the claimant got any special characteristics (Paris v Stepney Borough Council)
- What is the size of the risk? (Bolton v Stone) and (Haley v London Electricity Board)
- Have all the appropriate precautions been taken? What is the cost and effort in taking precautions verses the risk? (Latimer v AEC)
- Was it an unknown risk? (Roe v Minister of Health)
- Was there a public benefit? If there is an emergency, greater risks can be taken at a lower standard of care. (Watt v Hertfordshire County Council) and (Day v High Performance Sports)
9
Q
What is the third element of negligence?
A
- The claimant must prove that the breach of duty was the cause of damage. This can be personal injury or financial loss
10
Q
How can they prove the third element of negligence?
A
- Causation
- Remoteness of damage
11
Q
How can causation prove the breach of duty?
A
Factual Causation = But For Test
- But for the defendant’s actions or omissions, would the injury or damage have occured? This is seen in (Barnett v Chelsea and Kensington Hospital Management Committee)
Intervening Act
- An intervening act can break the chain of causation
12
Q
How can remoteness of damage prove the breach of duty? What is key cases that establish this?
A
- This is whether the type of injury was foreseeable
- The defendant will be liable if the type of injury was foreseeable even though the precise way it happened was not
- The type of damage may have been reasonably foreseeable if they had a pre-existing condition. This is the Egg-Shell Rule which is that you must take your victim as you find them. This is seen in (Smith v Leech Brain Co Ltd)
- Key cases of remoteness are: (The Wagon Mound), (Hughes v Lord Advocate), (Bradford v Robinson Rentals) and (Doughty v Turner Asbestos)
13
Q
What can we use when there is a clear breach of duty?
A
- Res Ipsa Loquitur = The thing speaks for itself
- The balance of proving the negligence is on the claimant with the balance of probability
- This can be used when there is a clear breach of duty but it is not clear how it has been breached
14
Q
What must the claimant prove for res ipsa loquitur?
A
- The defendant was in control of the situation which caused the injury
- The accident would not have happened unless someone was negligent
- There is no other explanation for the injury
- This is seen in (Scott v London and St Katherines Docks)
15
Q
What are defences to a negligence claim?
A
- Contributory Negligence
- Consent
16
Q
How is contributory negligence a defense? What are key cases which established this?
A
- This is a partial defence that the claimant has partially caused or contributed to their own injury
- The amount of blame will be decided by the judge and damages will be reduced according to their extent of contribution
- This is seen in (Sayers v Harlow Urban District Council), (Jayes v IMI Kynoch), (O’Connel v Jackson), (Froom and Butcher), (Stinton v Stinton) and (Badger v Ministry of Defence)
17
Q
How is consent a defence to negligence? What must they prove? What are key cases that established this?
A
- Consent = Volenti non fit injuria
- This is a full defence when the claimant accepts voluntary assumption of the risk of harm
To succeed the defendant must show:
1. A knowledge of the precise risk
2. Exercise of free choice by the claimant
3. A voluntary acceptance of the risk - This test is subjective. They must show that the claimant was aware of the risk.
- Key cases are (Stermer v Lawson), (Smith v Baker), (Haynes v Harwood), (Ogwo v Taylor), (Sidaway v Governors of the Bethlem Royal and Mausdley Hopsitals), (ICI Ltd v Shatwell) and (Wooldridge v Sumner)
18
Q
What was stated in the Law Reform Act 1945 for damages?
A
- Any damages awarded to the claimant can be reduced according to the extent or level to which the claimant contributed to their own harm
19
Q
What are the key cases for duty of care?
A
- Donoghue v Stevenson
- Caparo v Dickman
- Kent v Griffiths
- Bourhill v Young
- McLoughlin v O’Brien
- Hill v Chief Constable of West Yorkshire
20
Q
What are the key cases for breach of duty?
A
- Bolam v Friern Barnet Hospital Management Committee
- Nettleship v Weston
- Mullins v Richards
- Bolton v Stone
- Latimer v AEC Ltd
- Paris v Stepney Borough Council
- Haley v London Electricity Board
- Watt v Hertfordshire County Council
- Day v High Performance Sports
- Roe v Minister of Health
21
Q
What are the key cases of the breach has caused damage?
A
- The Wagon Mound
- Barnett v Chelsea and Kensington Hospital Management
- Smith v Leech Brain Co
- Hughes v Lord Advocate
- Scott v London and St Katherines Dock
- Bradford v Robinson Rentals
- Doughty v Turner Asbestos
22
Q
What are the key cases for contributory negligence?
A
- Sayers v Harlow Urban District Council
- Jayes v IMI
- O’Connell v Jackson
- Badger v Ministry of Defence
- Stinton v Stinton
- Froom and Butcher
23
Q
What are the key cases for consent?
A
- Stermer v Lawson
- Smith v Baker
- Haynes v Harwood
- Ogwo v Taylor
- Sidaway v Governors of the Bethlem Royal and Maudsley Hospital
- ICI ltd v Shatwell
- Wooldridge v Sumner
