Negligence 1 - The General Case:

Question 1

What general principle is applied concerning liability for negligence in the specific context of unintentionally caused harm?

Answer 1

Damnum injuria datum

“Loss caused unlawfully, without justification or wrongfully”

Question 2

Does the existence of a duty of care in itself determine liability?

Answer 2

No.

There are other elements to be established.

Question 3

What is an essential pre-requisite to the success of any claim grounded on negligence?

Answer 3

The existence of a duty of care must be established.

Question 4

What is the first step in the analysis of negligence?

Answer 4

To determine whether or not the defender owed the pursuer a duty of care.

Question 5

When can there be no liability in negligence?

Answer 5

When it is determined that the defender did not owe the pursuer a duty of care.,

Question 6

What are the fundamental elements of liability for negligence?

Answer 6

1 - did the defender owe the pursuer a duty of care?

2 - has this duty of care been breached?

3 - did the breach cause the loss complained of by the pursuer?

4 - if so, are all or any of the losses too remote?

Question 7

Donoghue v Stevenson

Answer 7

• snail in bottle case
• HoL upheld the view that she had a relevant claim in delict
• formulated the “neighbourhood” principle
• become the basis for the modern law of negligence

Question 8

What does the “neighbourhood” principle impose?

Answer 8

Imposes on us all a duty to consider the potential effects on others of our conduct and to avoid causing harm by taking precautions needed in the circumstances.

Question 9

Explain what is meant by “there is in general no liability for omissions”

Answer 9

This means that people are in general under no duty to guard other against risks that they have not themselves created.

Question 10

Faced with a potential action grounded on negligence the question of whether the defender owed the pursuer a duty of care must be addressed. This question resolves into two related issues.

What are these issues?

Answer 10

1 - not only must the defender have owed the pursuer a duty of care

2 - but the harm complained of must have been within the scope of the duty

Question 11

Bourhill v Young, per Lord MacMillan

Answer 11

“The duty of care is not owed to the world at large, but to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”

Question 12

What does proximity broadly refer to?

Answer 12

Factors that tend to draw the pursuer and the defender closer so that it becomes easier to say that the defender ought to have had potential loss or harm to the pursuer within his or her contemplation.

Question 13

What is the simplest aspect of proximity?

Answer 13

Spatial or geographic

Question 14

Hill v Chief Constable of West Yorkshire

Answer 14

• “Yorkshire Ripper” case
• Case was unsuccessful: there was no element of proximity to link the victim with the police so that she ought to have been within their contemplation

Question 15

Muir v Glasgow Corporation

Answer 15

“Legal liability is limited to those consequences of our acts which a reasonable man of ordinary intelligence and experience so acting would have in contemplation.”

Per Lord MacMillan.

Question 16

Caparo Industries Plc v Dickman

Answer 16

“It is never sufficient to simply ask whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B.”

Per Lord Bridge

Question 17

What is the rule regarding duty of care in circumstances where there has been an unpredictable consequence? (Hughes v Lord Advocate)

Answer 17

Although the precise way in which an accident occurs may not be reasonably foreseeable, if some accident of that type or general nature is foreseeable then liability must be established.

Question 18

What is the one exception to the rule that when there are unpredictable consequences the defender is only liable for foreseeable circumstances? (McKillen v Barclay - Curle)

Answer 18

Personal injury cases. Here the defender takes the victim as they find them.

Question 19

How is a breach of duty determined?

Answer 19

The defender’s conduct is measured against the standard of care required.

Question 20

What is the standard of care?

Answer 20

The level of care that should be taken if the duty of care is to be fulfilled is that of a reasonable person in the circumstances of the defender.

Question 21

Which party is obligated to establish the standard of care?

Answer 21

It is for the pursuer to establish the standard of care by specification in pleadings of the measures that ought to have been taken.

Question 22

In which situations will the standard of care vary?

Answer 22

The standard of care will vary according to the level of risk and the potential degree of harm should the risk materialise.

Question 23

What does the term “the calculus of risk” refer to?

Answer 23

The approach used to determine the appropriate standard of care required by the defender.

This approach considers the practicability, expense and disadvantage to the defender in taking the precautions contended for by the pursuer.

Question 24

What does causation entail?

Answer 24

Where a duty of care has been recognised and where the defender’s breach of duty is established, it then falls on the pursuer to show that the loss complained of is attributable to the breach.

Question 25

What are the two requirements for causation?

Answer 25

1. The breach must be the factual cause of harm (causa sine qua non)
2. The breach must also be the legal cause of harm (causa causans)

Question 26

Unless the breach is both the factual and legal cause, causation will not be established and the action will fail accordingly.

True or false?

Answer 26

True

Question 27

What does novus actus interveniens mean?

Answer 27

“New intervening act”

Question 28

Remoteness operates to…

Answer 28

Draw a line between losses that must be compensated and those that the victim must bear.