Liability In Negligence For Personal Injury And Damage To Property

Question 1

What’s the idea of a duty of care in the tort of negligence?

Answer 1

To establish a legal relationship between the claimant and the defendant

Question 2

What case does the modern law of negligence come from?

Answer 2

Donohuge v Stevenson - Mrs Donohuge drank ginger beer which contained a snail in the bottle. This led to both physical and psychological injuries. She sued the manufacturer in negligence, claiming they were at fault and owed her a duty of care.

Question 3

What principle did Donohuge v Stevenson create?

Answer 3

The neighbour principle - the person who is owed a duty of care by the defendant

Question 4

What was the neighbour principle replaced by?

Answer 4

The 3 part Caparo test

Question 5

What does the Caparo test show and what case did it come from?

Answer 5

Shows who is owed a duty of care in negligence and all 3 parts have to be satisfied. It came from the case of Caparo v Dickman where the HOL set the 3 stage test for owing a duty of care

Question 6

What are the 3 parts of the Caparo test?

Answer 6

1. Damage or harm reasonably foreseeable - E.g Kent v Griffiths - an ambulance took unreasonable time to arrive and take a patient to hospital - a duty of care is owed. The court decided it was reasonably foreseeable that the C would suffer more if the ambulance arrived late.
2. Proximity of relationship - close in terms of time, space and relationship - Bourhill v Young - woman heard an accident where a motorcyclist died and she suffered shock when she saw blood on the road, but no duty of care is owed. HOL decided the motorcyclist couldn’t have anticipated his accident would cause mental injury to a bystander and he wasn’t proximate to Mrs Bourhill.
3. Fair, just and reasonable to impose a duty - the court considers what’s best for society as a whole - Hill v Chief Constable of West Yorkshire - it was not fair, just or reasonable for police to owe a duty to the general public, it could lead to defensive policing and lower the standards of policing.

Question 7

What then must the claimant prove after a duty of care is owed?

Answer 7

The claimant must prove the duty of care has been broken by failing to meet the required standards of care.

Question 8

What standard is the required standard of care?

Answer 8

The standard is objective, that of the “reasonable person”.

Question 9

What is the reasonable person?

Answer 9

The reasonable person is the ordinary person performing the task. E.g reasonable driver or doctor.

Question 10

How are professionals judged and what’s a case example of this?

Answer 10

Professionals are judged by the standard of the profession as a whole. E.g Bolam v Fiern Barnet Hospital Management Committee - The C wasn’t given relaxant drugs during an electric shock treatment. One medical opinion favoured relaxant drugs, and the other said that drugs should only be used for a reason which wasn’t present in this case. The court decided that as the hospital had followed one of these opinions, it hadn’t breached a duty of care.

Question 11

How are learners judged and what is the case example to show this?

Answer 11

Learners are judged at the standard of a more experienced person. In Nettleship v Weston - during a driving lesson Mrs Weston hit a lamppost, injuring Mr Nettleship. The Court decided she had breached her duty of care to Mr Nettleship. She was judged at the standard of a competent driver, not an inexperienced learner.

Question 12

How are children and young people judged and what is the case to show this?

Answer 12

For children and young people, the standard is a reasonable person of the defendants age at the time of the accident. In Mullins v Richard two 15 year old schoolgirls were play fighting with plastic rulers, one of them snapped and entered one of the girl’s eye, blinding her. The court decided that the other girl had to meet the standard of a 15 year old schoolgirl and not a reasonable adult. She reached the required standard, so hadn’t breached a duty of care.

Question 13

What are risk factors?

Answer 13

When the court decides there’s been a breach of duty, it will consider certain factors to decide if the standard of care should be raised or lowered. These include special characteristics, the size of the risk, appropriate precautions and public benefit.

Question 14

What a case example of special characteristics?

Answer 14

In Paris v Stepney Borough Council, Mr Paris was known to be blind in one eye. While working he wasn’t given protective googles, so he became completely blind. His employers were held to have broken their duty of care to him, as they knew the consequences of injury to his good eye would be serious and should’ve taken greater care to provide goggles.

Question 15

What’s a case example of the size of the risk?

Answer 15

Where the risk is small it’s unlikely there’s a breach of duty. In Bolton v Stone a cricket ball hit a lady outside a cricket ground surrounded by a 17 foot high fence. It was found that due to the low number of times balls had been hit outside, the cricket club hadn’t breached its duty of care, as there was a low risk.

Question 16

What’s a case example of appropriate precautions?

Answer 16

The risk involved is balanced against the cost and effort of taking precautions. In Latimer v AEC a factory floor was slippery due to a flood, so sawdust was spread on the floor to reduce slipping. One worker slipped and was injured. The court held there was no breach of the duty of care. The only way to completely prevent injury was to close the factory and it was unreasonable to expect the owners to do so.

Question 17

What’s public benefit and a case example to show this?

Answer 17

If there’s an emergency, then greater risks can be taken and a lower standard of care can be accepted. E.g in Day v High Performance Sports, the C fell from a climbing wall and suffered serious injuries. The way the manager rescued her caused her to fall, but the court decided that the manager and the centre hadn’t breached their duty of car in view of the emergency situation.

Question 18

What’s an unknown risk and a case example to show this?

Answer 18

If the risk of harm is unknown, there is no breach. E.g in Roe v Minister of Health, in a hospital the claimant was paralysed by some contaminated anaesthetic. The risk of the contamination wasn’t known at the time, so there was no breach.

Question 19

What is a damage?

Answer 19

A legal concept that asks if the D’s breach of duty led to the injury or property damage suffered by C. The claimant must prove that the damage suffered was caused by the breach of duty and the loss or damage isn’t too remote.

Question 20

What are the 2 parts to damage?

Answer 20

Causation and remoteness of damage

Question 21

What’s causation in tort law negligence?

Answer 21

Causation is the idea that the breach of duty has caused the injury or damage being claimed for. This is factual causation. Causation in law decides if the injury or damage suffered was reasonably foreseeable (both elements needs to be proved for a negligence claim to succeed)

Question 22

How is factual causation decided and what is a case example to show this?

Answer 22

“but for” test, the injury or damage wouldn’t have happened “but for” the defendant’s act or omission. In Barnett v Chelsea and Kensington Hospital Management Committee, 3 men went to hospital, complaining of sickness after drinking tea, but the doctor suggested they go home. One of the men died hours later from poisoning and his widow sued the hospital, claiming the doctor was negligent in not examining her husband and caused his death. Evidence showed it was too late to save the man’s life and his death wasn’t caused by the doctors breach of duty of care, so the claim failed.

Question 23

What’s novus actus intervniens?

Answer 23

An intervening act that breaks the chain of causation

Question 24

What’s remoteness of damage?

Answer 24

Where factual causation is proved it must be shown that the damage isn’t too remote from the negligence of the defendant

Question 25

What happened in the Wagon Mound?

Answer 25

Fuel oil had been negligently spilled from the defendant’s ship onto water, spreading towards the claimant’s wharf and caused a fire, burning the claimant’s wharf down. It was decided that the fire damage wasn’t reasonably foreseeable and it was too remote from the original negligent act of spilling the oil.

Question 26

What was the test for remoteness of damage from The Wagon Mound?

Answer 26

The test for the remoteness of damage from this case is that the injury or damage must be reasonably foreseeable. This is the test of legal causation.

Question 27

What does the type of injury foreseeable mean?

Answer 27

The D will be liable if the type of injury was foreseeable, even though the way it happened wasn’t.

Question 28

What happened in Bradford v Robinson Rentals?

Answer 28

The claimant was required by his employer to drive a van to collect another one. This was done in extreme cold weather and neither van had a heater, so the claimant suffered from frostbite. The court decided that the employers were liable for his injuries , despite his being unusual, as some injury from the cold was reasonably foreseeable.

Question 29

What does the eggshell skull rule mean?

Answer 29

That the D must take the victim as he or she finds them. If the damage is much more serious as the C had a pre existing condition, then the D is liable for all the consequences.

Question 30

What happened in Smith v Leech Brain and Co.?

Answer 30

A man was burnt by molten metal in a factory due to D’s negligence, but the man had a pre cancerous condition, the burn caused the man to die. The Court decided that as the burn was reasonably foreseeable and due to the eggshell skull rule, the D was liable for the man’s death.

Question 31

What are the defences to a negligence claim?

Answer 31

Contributory negligence and consent

Question 32

When is the defence of consent likely to succeed?

Answer 32

If the claimant acts against the employers orders or against statutory rules and is injured, the defence of consent is likely to succeed. E.g in ICI Ltd v Shatwell the C followed his brothers instructions and not his employers in handling detractors and was injured when one exploded. He claimed negligence against his employer. The court decided by following his brothers unauthorised orders and not his employers, he assumed the risk of injury and the defence of volenti succeeded.