Negligence

Question 1

What is the ‘reasonable person’?

Answer 1

Any other person of a similar characteristic in the same circumstances

Question 2

What is negligence?

Answer 2

• An act or a failure to act which causes injury or damage to another person or their property
• Defined in Blyth v Birmingham Waterworks Co. (1856) as ‘failing to do something which the reasonable person would do or doing something which the reasonable person would not do’

Question 3

What must a claimant do to prove the defendant is liable of negligence?

Answer 3

• The claimant must provide evidence that the blame is on the part of the defendant
• He must prove that the defendant owed him a duty of care, that he breached that duty and that breach caused reasonably foreseeable injury or damage
• The judge must decide the level of fault based on the balance of probabilities
• If the evidence provided by the claimant is not sufficient, he may be left without compensation

Question 4

What is needed to start a tort case?

Answer 4

A legal relationship must be established where a duty of care exists on the part of the defendant

Question 5

What did Donoghue v Stevenson (1932) establish?

Answer 5

The ‘neighbour principle’ that the person is owed a duty of care by the defendant. In this case, it was manufacturer

Question 6

What was the Caparo test?

Answer 6

• (strictly used until 2018)
• A 3-part test which replaced the neighbour principle:
  1. Was the damage or harm reasonably foreseeable?
  2. Is there a sufficiently proximate relationship between the claimant and defendant?
  3. Is it fair, just and reasonable to impose a duty?
• All three parts of the duty of care test must be met in order to satisfy the test

Question 7

What did the case of Caparo v Dickman (1990) refer to?

Answer 7

• ‘statutory accounts’
• These are the accounts that must be legally published by a company at the end of a financial year and sent to the shareholders and the Inland Revenue.
• They are available to the public, but they only contain the broad overview, not the detail

Question 8

What happened in Robinson v Chief Constable of West Yorkshire (2018)?

Answer 8

• (C) Mrs Robinson a 76-year-old frail woman
• (D) West Yorkshire Police (on behalf of the actions of their officers)
• Mrs Robinson suffered injuries when she was knocked over and fallen on by two Police Officers who were physically apprehending a suspected drug dealer whilst she was in close physical proximity. Both the trial court and Court of Appeal held that as Police Officers the two were immune from a claim in negligence in line with the existing authority on this point, Hill v Chief Constable of West Yorkshire (1989).

Outcome: Liable

Question 9

What did Robinson v Chief Constable of West Yorkshire (2018) establish?

Answer 9

• (The law since 2018)
• Established that the Caparo test only needs applying in new and novel cases and that the courts should generally establish a duty by looking at existing duty situations and ones with clear analogy.

Question 10

How has the Caparo test been changed as of 2023?

Answer 10

• Now enough to establish a duty of care by simply looking at the facts of existing laws/ court decisions already there.
• Caparo is only used when there is a rare or unusual case when questions might arise as to whether it is fair to establish a duty or not

Question 11

What does the case of Kent v Griffiths (2000) show?

Answer 11

Damage of foreseeable harm

Question 12

What is ‘proximity of relationship’ in tort cases?

Answer 12

• (‘related’ in this scene does not mean family relationship)
• Proximity of relationship is described in the Bourhill v Young case (1943).
• The reason Mrs Bourhill did not win this case was because it was judged that she had no relationship with the motorcyclist.
• McLoughlin v O’Brien (1982) had a different outcome, however.

Question 13

What happened in Hill v Chief Constable of West Yorkshire (1990) that shows the final part of the test where the courts need to decide when it is reasonable to assume a duty of care?

Answer 13

• The court ruled that it was unfair to assume that the police had a specific duty of care to members of the public. This would leave them open to being sued and this could divert resources and attention away from the prevention and detection of crime.
• If the police fail to prevent an offence from being committed that is not negligence and you, sue the police for that. If the police fail to act to a foreseeable event in the course of their duty then that can be negligence e.g. running and chasing a drug dealer and an old woman was in the way so you pushed her out the way. That would be negligence as pushing an older woman is dangerous as they are older and more fragile

Question 14

What is a duty of care?

Answer 14

The objective standard of care and the reasonable person

Question 15

How must a claimant prove ‘breach of duty’ in a case?

Answer 15

• The claimant must prove firstly that a duty of care is owed and secondly that it has been breached.
• The standard set is that there were no special circumstances that prevented D from doing the task competently.

Question 16

What questions does Bolam v Fiern Barnet Hospital Management Committee (1957) make us ask?

Answer 16

• Does the defendant’s conduct fall below the standard of an ordinary, competent member of the profession? If ‘no’ – then no breach of duty of care.
• Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant? If ‘yes’ – then no breach of duty of care.
• The approach followed in Bolam was altered by the Supreme Court in Montgomery v Lanarkshire Health Board (2015).
• Bolam v Fiern Barnet Hospital Management Committee (1957)

Question 17

What are other types of breaches of duty?

Answer 17

• Learner drivers and claims - A learner is judged at the standard of the competent, more experienced driver. Is this not unfair? - no, because the learner is
  Covered by insurance. Nettleship v Weston (1971).
• Children and young people - If the defendant is deemed to meet the standard of a child and not that of a reasonable adult, then they are not in breach of a duty of care. Mullin v Richards (1998)

Question 18

What are some cases that show the risk factors that are in a ‘breach of duty’ claim?

Answer 18

• Bolton v Stone (1951) - If enough due diligence has been taken accidents can still occur. This is not negligence as there’s no liability
• Roe v Minister of Health (1954) - If the risk is not known about then chances are you will not be liable
• Watt v Hertfordshire County Council (1954) - If the risk is the only option to avoid something more serious or worse and there’s still an accident then there’s no claim

Question 19

What is ‘damage’ and the difference to ‘damages’?

Answer 19

• Damage and damages are different.
• Damage is the legal test of a loss to the claimant from a breach of duty and…..
• Damages is the compensation paid to the claimant who proves the defendant is negligent

Question 20

When would you not need to find legal causation in a case?

Answer 20

• ‘But for’ test/rule
• If it can be proved that but for the defendant’s action or omission injury or damage would not have occurred, then there is no need to find legal causation.
• Barnett v Chelsea and Kensington Hospital Management Committee (1969).

Question 21

How does legal causation work as a damage?

Answer 21

• An intervening event can break the causation chain
• Novus actus interveniens - in the chain of events leading from one accident, you have another

Question 22

What is a full defence?

Answer 22

Theres no liability, and the claim will be dismissed

Question 23

What is a partial defence?

Answer 23

Not full defence but will reduce liability

Question 24

What are the 2 main defences in negligence?

Answer 24

1. Alleging the claimant is partly to blame for their injuries
2. Alleging the claimant consented or agreed to accept a risk of harm

Question 25

What is contributory negligence (partial defence)?

Answer 25

• The defendant accepts liability but suggests the claimant is also partially to blame
• Set out in the Law Reform (Contributory Negligence) Act 1945
• The judge will first of all set out the full amount of damages and then reduce it by the percentage he feels the claimant might share responsibility

Question 26

What are case examples of contributory negligence?

Answer 26

• Sayers v Harlow Urban District Council (1958)
• O’Connell v Jackson (1972)

Question 27

How does contributory negligence work in a sports match/game?

Answer 27

If the game is played in the rules of the game, there’s no negligence as that’s the rules but if someone does something outside of the rules of the game e.g. injuring someone that is negligence as you wouldn’t consent to that

Question 28

How does Consent (volenti non fit injuria) being raised as a defence work?

Answer 28

• A defence can also be raised if it can be proved that the claimant consented to the risk
• It must be demonstrated that:
• There was knowledge of the precise risk involved
• Exercise of free choice by the claimant
• A voluntary acceptance of that risk

Question 29

What are ways where Consent (volenti non fit injuria) may or may not work in cases ?

Answer 29

• There must be a complete understanding of the nature of the risk for this defence to hold, simply knowing about a risk is not good enough
• Stermer v Lawson (1977)
• If the claimant had no choice but to take the risk. Smith v Baker (1891)
• Where a person has a duty to act, but is then injured. Haynes v Harwood (1935), Ogwo v Taylor (1987)
• In medical negligence cases, volenti is very important. Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals (1985)
• However if the claimant acts against employer’s orders or against statutory rules, then volenti can succeed. ICI Ltd v Statwell (1965)
• If the claimant is unaware of the risk, or is judged to have simply made an error of judgement, then volenti will not help the defendant either
• If the defence of volenti fails, then the defendant can still claim contributory negligence and have the amount of damages reduced

Question 30

What is ‘remoteness of damage’ and a case example where it was used?

Answer 30

• That the defendant is only liable if the injury or damage was reasonably foreseeable.
• The Wagon Mound case (1961).

Question 31

How does a type of injury being foreseeable work as a damage work?

Answer 31

• The defendant can be liable if the type of injury was reasonably foreseeable and the defendant could have predicted or expected it from his actions
• Hughes v Lord Advocate (1963) - liable
• Bradford v Robinson Rentals (1967) - liable
• Doughty v Turner Asbestos (1964) - not liable

Question 32

How does taking your victim as you find him as a damage work?

Answer 32

• If the claimant has a pre-existing condition that is made worse by an injury that was reasonably foreseeabe, then the defendant can also be held liable.
• E.g. Smith v Leech Brain and Co. (1962)

Question 33

What must the claimant prove when they don’t know what exactly happened, only that a breach of care and negligence has occurred and that he has suffered an injury or damage e.g. operation gone wrong?

Answer 33

• The defendant was in control of the situation which caused the injury.
• The accident would not have happened but for the defendant’s negligence.
• There is no other explanation for the injury.
• Scott v London and St Katherine’s Docks (1865).

Question 34

What is the evaluation of liability in negligence?

Answer 34

That it is a fault-based system with the claimant having to prove the fault which can cause problems.

Question 35

How is the evaluation of costs needed to prove fault of liability cases in negligence?

Answer 35

• Claims can incur costs for the claimant.
• If there were no witnesses, special accident investigators or the police might have to be used.
• Medical evidence for injury.
• Valuations for property lost or damaged.

Question 36

Evaluation of delays in needing to prove fault of liability cases in negligence?

Answer 36

• Most defendants are covered by insurance.
• Once an injury or damage has been reported, the insurance company takes over the case.
• Insurance companies are often suspicious of false claims and will usually investigate to make sure it’s genuine. This can sometimes take a long time which can potentially lead to the claimant suffering more.
• It can also take a long time to obtain all the evidence in a form to be presented to court.
• 3 year limit after the accident to file a claim, 6 on damage to pottery.
• No time limit when the case has to be completed, except for fast- track cases in County Court.

Question 37

How is the need for lawyers proof for fault of liability cases in negligence?

Answer 37

• In personal injury claims, a lawyer may be needed to convince the defendant or his insurance company that his client has a valid claim.
• A lawyer will also be needed if settlement cannot be reached and the case goes to court. This can add to the cost and delay.
• In a ‘no win no fee’ arrangement, the lawyer will ask for the payment of a premium. This can either be a pre-paid insurance policy taken out before the event or a an after the event policy when the insurance company will be approached to cover the costs of the claim.
• Lawyers will only accept a ‘no win, no fee’ if they feel there’s more than a 75% chance of success.

Question 38

Evaluation of confrontation between parties in needing to prove fault of liability cases in negligence?

Answer 38

These situations can often be quite confrontational which makes negotiation less likely, even more so if the case goes to court.

Question 39

Evaluation of the judicial law making in needing to prove fault of liability cases in negligence?

Answer 39

• Tort law is for the most part not statutory and has developed from judicial precedent.
• Sometimes judges are criticised for having a lack of understanding of the economic and social judgments that need to be taken in the area of torts.
• However judges are usually restrained in their powers to develop rules of law and when Parliament does intervene, such as in The Compensation Act 2006, it’s not always well thought out.
• The fact that Robinson now means that the Police owe a duty of care to the public supersedes the previous assertion that the Police could not be sued for negligence. This means that the Caparo Test no longer needs to be strictly applied, except in ‘novel’ situations.

Question 40

Evaluation of establishing the duty of care of liability cases in negligence?

Answer 40

• Robinson has significantly changed things here. Previously courts had been cautious here. E.g. Hill v Chief Constable of West Yorkshire. Duty of care could not be imposed on the police when they did not know the victim. Now as a result of Robinson, each case will have to looked at individually.
• ABC v St George’s Healthcare NHS Trust and others (2015) (Judge said a hospital did not owe a duty of care)

Question 41

Evaluation of policy in needing to prove fault of liability cases in negligence?

Answer 41

• Judges in the higher courts sometimes have to make decisions that go against precedent.
• They will generally only do this if it’s to plug a gap in the law or to ensure a just and fair outcome.
• The problem with this is that it creates uncertainty.
• Clarity and predictability are the most important elements in the law so developing policy principles in this way can confuse and mislead people.

Question 42

Evaluation of changing the law in needing to prove fault of liability cases in negligence?

Answer 42

• Sometimes judges in appeal courts recognise that some long established principles are wrong, so they make a new principle.
• The definition of a doctor’s duty of care in the Bolam case (1957) defined negligence in medicine for over half a century, but was changed in the Montgomery (2015) case.
• Changing codes of practice in different professions, such as the medical profession may also influence this.

Question 43

What are some ideas for reform of liability in negligence?

Answer 43

• For compensating accident victims - A state-run benefit scheme which pays out compensation to all victims of accidents without the need to prove how or why the accident happened.
• Follow New Zealand. Put in place a complete no fault accident compensation scheme which cover injuries suffered in all sorts of areas, not just the work place or on the roads
• Require every adult to have compulsory liability insurance which would pay out in the event of an accident
• Consider dealing with issues of confrontation between the parties is to make greater use of out-of-court dispute resolving methods
• Speed up the court process by using online courts
• Raise the lower limit of personal injury claims to a minimum of £5,000 (aim is to reduce the number of whiplash claims)