Negligence

Question 1

Negligence

Answer 1

an act/failure to act which causes loss (damage/injury) to another person or their property
no written agreement

Question 2

What case is negligence defined in

Answer 2

Blyth v Birmingham Waterworks Co. 1856 ‘failing to do something which the reasonable person would or wouldn’t do’

Question 3

Omission

Answer 3

failure to do something when there is a duty of care

Question 4

Foreseeable

Answer 4

knowingly avoidable

Question 5

Duty of care

Answer 5

legal relationship must be established where a duty of care exists on the part of the defendant
Donoghue v Stevenson

Question 6

‘Neighbour Principle’

Answer 6

Donoghue v Stenson established this and that the person is owed a duty of care by the defendant

Question 7

The Caparo Test (used until 2018)

Answer 7

used for novel cases
- was damage/harm reasonably foreseeable
- is there a proximate relationship between D and C
- is it fair, just and reasonable to impose a duty
(police couldn’t be sued for negligence before)

Question 8

Problem of part of Caparo

Answer 8

fair, just and reasonable to impose duty couldn’t be applied to police (chief constable)

Question 9

Since 2018 - Robinson v Chief Constable

Answer 9

can sue anyone for negligence but the Caparo test is only used in a novel (unusual) situation
no standard test anymore, each case is trialed on the events

Question 10

Novel situation/ case

Answer 10

rare or unusual situation

Question 11

Law now on duty of care - legal principle

Answer 11

Caparo test doesn’t need to be strictly applied in every case, courts must look at existing statutes (police aren’t exempt)

Question 12

Damages

Answer 12

compensation

Question 13

Damage

Answer 13

whatever has happened to property that has suffered negligence
- legal test of a loss to the claimant from a breach of duty

Question 14

Proximity of relationship described in

Answer 14

Bourhill v Young (could open floodgates to unlimited no. of claims)

Question 15

Proximity of relationship differs in

Answer 15

McLoughlin v O’Brien

Question 16

Caparo v Dickman

Answer 16

deals with ‘statutory accounts’

Question 17

‘Statutory accounts’

Answer 17

accounts that must be legally published by a company at the end of a financial year and sent to shareholders

Question 18

Breach of duty

Answer 18

• claimant must prove D has breached duty
• professionals are judged by the standard of their profession as a whole
  -> all risks must be explained to a patient (get consent)

Question 19

Risk factors

Answer 19

• has the claimant got special characteristics
• size of risk
• appropriate precautions must be taken
• public benefit
• was risk known at the time
• higher risk of injury = higher risk of care

Question 20

Factual causation and ‘but for’ test

Answer 20

would the situation occur ‘but for’ Ds actions, if it would then D isn’t liable and there is no need to find legal causation

Question 21

Legal causation

Answer 21

intervening event (chain of events leading from one accident and another that is totally unrelated, the chain of causation is broken (liability will still exist for the first)

Question 22

Defences in negligence

Answer 22

full defence
partial defence

Question 23

Full defence

Answer 23

no liability and the claim is dismissed

Question 24

Partial defence

Answer 24

will reduce liability

Question 25

Remoteness of damage

Answer 25

D is only liable if the injury or damage was reasonably foreseeable (Wagon Mound case 1961)

Question 26

Take victims as found

Answer 26

if claimant has a pre existing condition that is made worse by an injury that is reasonably foreseeable, then D can also be held liable

Question 27

Contributory negligence

Answer 27

- set out in Law Reform Act 1945 - only a partial defence, D accepts liability but suggest claimant is partially to blame

Question 28

thing speaks for itself

Answer 28

claimant may not know what happened, only that a breach of care and negligence has occurred and that they have suffered an injury or damage e.g. operation gone wrong

Question 29

Consent (volenti)

Answer 29

up to the D to provide evidence to show they aren’t liable (to support defence) + if a game is played and an injury occurs then there is not negligence but if it is outside of the rules of the game then it is negligence

Question 30

consent demonstrated thru:

Answer 30

- knowledge of risk involved - free choice (coerced, learning disability, a child) - voluntary acceptance of risk - risk is specifically understood

Question 31

Occupiers liability

Answer 31

negligence that occurs on a property ( duty of care when someone is occupying real property)

Question 32

Children and young people

Answer 32

if the D is deemed to meet the standard of a child then they did not breach a duty of care (Mullin v Richard)

Question 33

Objective standard of care

Answer 33

claimant must prove that duty of care is owed and that it has been breached

Question 34

Professionals

Answer 34

judged by professions general standards and by the standard of their profession as a whole

Question 35

Other breaches of duty

Answer 35

learner driver is judged at the standard of the competent experienced driver (Nettleship v Weston 1971