Negligence

Question 1

What is negligence?

Answer 1

An act or a failure to act which causes injury or damage to another person or their property.

Question 2

What is the definition of negligence?

Answer 2

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

Who is the reasonable person?

Answer 3

The reasonable person is defined as any other person of a similar characteristic in the same circumstances.

Question 4

What is an omission?

Answer 4

An omission is a failure to do something.

Question 5

What is the role of a duty of care in tort?

Answer 5

In order to start a tort, a legal relationship must be established where a duty of care exists on the part of the defendant.

Question 6

What is the ‘Caparo test’?

Answer 6

A 3-part test which replaced the neighbour principle and determines the duty of care owed by one person to another. The questions raised in the test are as follows:

Was the damage or harm reasonably foreseeable?

Is there a sufficiently proximate relationship between the claimant and defendant?

Is it fair, just and reasonable to impose a duty?

Before, the police could not be sued for negligence, if that question was asked before Robinson then the answer would be no.

Question 7

What impact did Robinson v achieved Constable of West Yorkshire (2018) have on the Caparo test?

Answer 7

This case 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 8

What is the current law on duties of care?

Answer 8

Legal principle: the Caparo test does not have to be strictly applied in every case, instead the courts should look to existing statutes and precedents and identify duties through analogy. Where there is an existing or analogous duty that can be applied, the courts do not need to consider the Caparo test, as such consideration has already been determined, recognising the duty. Only in novel duty situations does this need to be considered.

Additionally, public authorities are subject to the same liabilities in tort law as private individuals. They are under a duty not to cause the public harm via their own actions, but are not under a duty to prevent harm from third parties. The Police are not exempt from claims in negligence.

Question 9

How is the Caparo test used now?

Answer 9

In establishing negligence claims now, as of 2023, it is 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 10

Arguments if the police should be protected from being sued in negligence.

Answer 10

If the police fail to prevent an offence being committed, it would be unfair to sue them. You cannot prevent every single criminal offence. However, if the police fail to act to a foreseeable event in the course of their duty then that can be negligence.

Very few claims against the police succeed.

Question 11

Key aspects of a breach in duty.

Answer 11

The objective standard of care and the reasonable person

The claimant must prove firstly that a duty of care is owed and secondly that it has been breached.

The standard set is that the defendant who is alleged to have breached that duty of care can be regarded as the ‘reasonable person’. In other words there were no special circumstances that prevented him from doing the task competently.

Professionals are judged by the standard of their profession as a whole.

Question 12

In order to determine a breach of duty, what questions need to be asked?

Answer 12

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).

Question 13

What are some other examples of a breach of duty?

Answer 13

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 14

What are the risk factors that have to be accounted for?

Use cases.

Answer 14

Has the claimant any special characteristics which should be taken account of? Paris v Stepney Borough Council (1951)

What is the size of the risk? Bolton v Stone (1951).
Bolton v Stone, key point is if enough due care/due diligence has been taken accidents can still occur.

Is there a public benefit to taking a risk? Watt v Hertfordshire County Council (1954) and Day v High Performance Sports (2003).
Watt v HCC - If the risk is the only option to avoid something more serious or worse and there is still an accident then there is no claim.

If there is a higher risk of injury however, then the standard of care is higher. Haley v London Electricity Board (1965).

Have all appropriate precautions been taken? Latimer v AEC Ltd (1953).

Were the risks known about at the time of the accident? Roe v Minister of Health (1954).
If the risk is not known about and completely random, then chances are you will not be held liable.

Question 15

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

Answer 15

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 16

What is factual causation and the ‘but for’ test?

Answer 16

If it can be proved by the claimant that for the defendant’s actions or omission injury or damage would not have occurred, then there is no requirement to find legal causation.

Barnett v Chelsea and Kensington Hospital Management Committee (1969).

But for - “Would the thing have happened but for the defendant’s actions?”

Question 17

What is legal causation?

Answer 17

The relationship between the defendant’s conduct at the start and end of a series of events.

Question 18

What is an intervening event?

Answer 18

As in criminal law, an intervening event can break the causation chain.

Novus actus interveniens – in the chain of events leading from one accident, you have another which is totally unrelated, then the chain of causation is broken. The liability will still exist for the first, but the intervening event (even if it made things worse) cannot be related to the first

Question 19

What is remoteness of damage?

Answer 19

The defendant can only be found liable if the injury or damage was reasonably foreseeable.

The Wagon Mound case (1961).

Question 20

What is the doctrine of ‘take your victim as you find him’?

Answer 20

If there was a pre-existing condition that the claimant had, and the defendant’s actions make it worse then the defendant can also be held liable.

Smith v Leech Brain and Co. (1962).

Question 21

What does ‘Res ipsa loquitur’ mean?

Answer 21

It means that ‘The thing speaks for itself’ and is used in certain situations where the claimant may not know exactly what has happened, only that a breach of care and negligence has occurred and that they have suffered an injury or damage.

Question 22

When ‘the thing speaks for itself’ what does the claimant need to prove?

Answer 22

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.

If all three can be proved, then it’s up to the defendant to disprove the claim. Scott v London and St Katherine’s Docks (1865).

Question 23

What are some of the disadvantages of the tort of negligence?

Answer 23

Cost
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.

Delays
Most defendants are covered by insurance.
Once an injury or damage has been reported, the insurance company takes over the case.

Need for lawyers
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.

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

Judicial law making
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.

Establishing the duty of care
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.

Policy
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.

Changing the law
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.

Question 24

What are the two main defences in negligence?

Answer 24

Alleging the claimant is partly to blame for their injuries.

Alleging the claimant consented or agreed to accept a risk of harm.

Question 25

What is contributory negligence?

Answer 25

This is only a partial defence, in other words, the defendant accepts liability but suggests the claimant is also partially to blame.
This is 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.

Damages can also be reduced if the claimant has played a part in the injury, i.e – not wearing a seatbelt, failing to wear a crash helmet in a motorbike accident etc.
O’Connell v Jackson (1972) - Damages were reduced by 15% for not wearing a helmet.
Froom v Butcher (1976) - Damages were reduced by 20% for not wearing a seatbelt.
Stinton v Stinton (1993) - Damages were reduced by a third for accepting a lift from a drunk driver.

Question 26

What does ‘volenti non fit injuria’ mean?

Answer 26

It means that the claimant consented to the risk of injury.

During sports, as long as you’re playing within the rules, you are consenting to potential injury.

It is up to the claimant to provide evidence.

However, if a defence is raised then the defendant needs to provide evidence.

If you want to prove consent, you need to provide evidence that they had known the risks.

A child cannot give consent.

Question 27

What must be demonstrated in a defence of consent?

Answer 27

There was knowledge of the precise risk involved.

Exercise of free choice by the claimant.
A voluntary acceptance of that risk.

There must be a full 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). - Consent was argued as they had consented to riding the bike, however they were unaware of the risks associated as they did not know precisely what happened.

A defence will also fail if the claimant had no choice but to take the risk. Smith v Baker (1891).

In cases where a person has a duty to act, but is then injured, volenti cannot be used either. Haynes v Harwood (1935), Ogwo v Taylor (1987).