negligence

Question 1

where is negligence defined?

Answer 1

Blythe v birmingham waterworks

Question 2

negligence is defined in blythe v birmingham waterworks as…

Answer 2

an act or omission that causes injury or damage

Question 3

What is the test for negligence?

Answer 3

For a successful claim in negligence, C must show:
- D owed C a duty of care
- D breached the duty of care
- D’s breach caused reasonably foreseeable injury or damage

Question 4

Who is the burden of proof on in a case of negligence?

Answer 4

The burden of proof is entirely on the shoulders of the claimant.

• They must show, on the balance of probabilities, that the defendant is liable.

Question 5

What is a duty of care?

Answer 5

‘a requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would’.

Question 6

Which case was the start of the modern law of negligence?

Answer 6

Donoghue v Stevenson

Question 7

Donoghue v Stevenson

Answer 7

• friend brought mrs donoghue a bottle of ginger beer, a decomposed snail emerged from the bottle. suffered personal injury as a result. she commenced a claim against the manufacturer of the ginger beer
• Held: Her claim was successful. This case established the modern law of negligence and established the neighbour test.

Question 8

How do you prove a duty of care?

Answer 8

• For new/novel situations where it has not been decided before – the court will apply the Caparo test.
• For situations where it has already been proved whether or not there is a duty of care – the courts can skip the Caparo test (Robinson case)

Question 9

What is the three-part Caparo test?

Answer 9

1. Was the damage or harm reasonably foreseeable?
2. Is there a sufficiently proximate (close) relationship between the claimant and the defendant?
3. Is it fair, just and reasonable to impose a duty (policy)

Question 10

What are the cases for ‘Was the damage or harm reasonably foreseeable?’

Answer 10

Topp v London Country Bus (1993)

Langley v Dray (1998)

Bourhill v Young (1943)

Jolley v Sutton London Borough Council

Kent v Griffiths

Question 11

Topp v London Country Bus (1993)

Answer 11

• D bus company left a mini-bus in a lay-by overnight. It was unlocked and the keys left in the ignition. Thieves stole the bus and drove it away. The bus knocked a woman off her bicycle and killed her.
• Held: The bus company did not owe a duty of care for the acts of the third party. It was not foreseeable that thieves would take the bus and run a woman off her bicycle.

1. Was the damage or harm reasonably foreseeable?

Question 12

Langley v Dray (1998)

Answer 12

• D was driving a stolen car. Chased by the claimant (policeman). As a result of the chase, the claimant crashed his car and he was injured.
• Held there was a duty of care - D knew or should have known that he was being chased by the policeman (claimant) so when he increased his speed he knew or should have know that it increased the risk of injury i.e. it was reasonably forseeable that increasing speed would have increased the risk of injury

1. Was the damage or harm reasonably foreseeable?

Question 13

Bourhill v Young (1943)

(damage or harm reasonably forseeable)

Answer 13

• C suffered a still born after witnessing a lot of blood on road after a car crash
• Held: it wasn’t reasonably foreseeable. No duty of care was owed by the defendant to the claimant.

1. Was the damage or harm reasonably foreseeable?

Question 14

Jolley v Sutton London Borough Council

Answer 14

Two 14 year old boys found an abandoned boat in rough condition on land owned by the council and decided to do it up. The council had stuck a notice on the boat warning not to touch the boat and that if the owner did not claim the boat within 7 days it would be taken away. The council never took it away. The boys had been working on the boat for weeks when one of them suffered severe spinal injuries when the boat fell on top of him.

Held: Harm was foreseeable because the boat was in a dangerous condition and kids were likely to play on it because it was in a park - was a duty of care

1. Was the damage or harm reasonably foreseeable?

Question 15

Kent v Griffiths

Answer 15

• C was having an asthma attack. Her doctor attended her home and called for an ambulance at 16.25. The ambulance, which was only 6 miles away, did not arrive until 17.05. The claimant suffered respiratory arrest.
• was a duty - there was a duty as it was reasonably foreseeable that if the ambulance took unreasonable time to reach the patient, great injury would be caused

1. Was the damage or harm reasonably foreseeable?

Question 16

what does proximity mean?

Answer 16

closeness in terms of time, space, or relationship.

2. sufficiently proximate relationship between the C + D?

Question 17

Bourhill v Young (1943)

(in terms of a sufficiently proximate relationship)

Answer 17

• stillborn baby after seeing blood on road from accident
• held: claimant not sufficiently proximate to victim of road accident

2. sufficiently proximate relationship between the C + D?

Question 18

McLoughlin v O’Brian (1982)

Answer 18

• husband and children were involved in serious road accident, caused by negligence of the defendant lorry driver. One child died on the scene and rest taken to hospital. Claimant told and went to the hospital and saw her family before they were treated. She suffered severe shock, organic depression and a personality change. She claimed against the defendant for the psychiatric injury she suffered
• held: held there was a sufficiently proximate relationship between the claimant and the defendant

2. sufficiently proximate relationship between the C + D?

Question 19

Hill v Chief Constable of West Yorkshire

Answer 19

The claimant’s daughter was the last victim of the Yorkshire Ripper before he was caught. By the time of her death, the police had enough information to arrest him but failed to do so. The claimant alleged that the police owed her daughter a duty of care.

Held - the relationship between the victim and the police was not sufficiently close (proximate) for the police to owe a duty of care to the victim, and that it was not fair, just and reasonable for the police to owe a duty of care to the general public.

Is it fair, just and reasonable to impose a duty (policy)

Question 20

what is the objective test for breach of duty?

Answer 20

did the defendant’s actions/omissions fall below the standard of the reasonable person?

Glasgow Corporation v Muir (1943) - reasonable person is of average
intelligence and self-control and he possesses average skill and expertise.

Question 21

standard of care - professionals

Answer 21

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

Bolam v Friern Barnet Hospital Management Committee (1957)
- Does the defendant’s conduct fall below the standard of the ordinary
competent member of that profession?
- Is there a substantial body of opinion within the profession that
would support the course of action taken by the defendant?

Bolitho v City & Hackney Health Authority - In applying the Bolam test where evidence is given that other practitioners would have adopted the method employed by the defendant, it must be demonstrated that the method was based on logic and was defensible.

Question 22

standard of care - learners

Answer 22

judged at the standard of the competent, more experienced person

Nettleship v Weston (1971) - Nettleship arranged for Weston to give her driving lessons, on 3rd lesson she hit a lamppost which fell onto the car and injured Mr Nettleship. Court held Mrs Weston should be judged at the standard of the competent driver, not the standard of an inexperienced driver.

Question 23

standard of care - children

Answer 23

• Children are generally not expected to have the same skill or understanding as an adult
• therefore the standard of a duty of care owed by a child is that of an ordinarily careful and reasonable child of the same age.
• Mullin v Richards

Question 24

what will the court also consider when deciding whether or not D has breached their duty?

Answer 24

risk factors

Question 25

when deciding whether or not D has breached their duty, the court will also
consider different risk factors - what are these?

Answer 25

These are taken into account by the judge to decide whether D has breached their duty or not

• Special characteristics
• Size of risk
• Precautions taken
• Risk known about?
• Public benefit of taking the risk

Question 26

1) Has the claimant any special characteristics which should be taken account of? - case

Answer 26

Paris v Stepney Borough Council (1951) - Paris known to be blind in one eye. Given work by employer involving small risk of injury to eyes. Not given any protective goggles. During work, his good eye was damaged and he became totally blind. Held employers broke their duty of care to him

Employers knew consequences of an injury to his good eye could result in blindness – so they should have taken greater care and provided him with goggles

Question 27

2) What is the size of the risk? - cases

Answer 27

• Bolton v Stone (1951) - Cricket ball hit woman passing in street outside cricket ground. 17 foot high fence around pitch and wicket was far from fence. Only hit out of pitch 6 times in 30 years
• Due to small risk – cricket ground was found not to have breached their duty of care. Therefore principle is – higher the risk, the greater the precautions that need to have been taken AND the lower the risk, the fewer precautions that need to be taken
• Haley v London Electricity (1965) - Electricity board dug a trench for its cables following its standard practice and put out warning signs. It did not put any barriers around the trench. The claimant was blind and was injured when he fell in the trench
• It was known that this road was used by a number of blind people – so greater precautions should have been taken and the defendant had breached its duty of care according to the court

Question 28

3) Have all appropriate precautions been taken?

Answer 28

• Courts will consider the balance of the risk involved against the cost and effort of taking adequate precautions to eliminate the risk
• Latimer v AEC Ltd (1953) - Factory become flooded and as the floor was slippery the workers were evacuated/ Sawdust was spread over the floor to minimise the risk of slipping and workers were asked to go back in. One worker slipped and was injured
• Court held there was no breach of the duty of care as the factory had taken reasonable steps to reduce the risk of injury– there was no need to incur expense to eliminate every possible risk

Question 29

4) Were the risks known about at the time of the accident?

Answer 29

• If the risk of harm is not known, there can be no breach
• Roe v Minister of Health (1954) - Anaesthetic was kept in glass tubes which were sterilised by cleaning solution after each use. At the time it was not known invisible cracks could occur in the glass tubes which caused the anaesthetic to be contaminated with the cleaning solution. The claimant was paralysed by some contaminated anaesthetic
• Held: As the risk of contamination was now known, the court decided there was no breach

Question 30

5) Is there a public benefit to taking the risk?

Answer 30

• If there is an emergency then greater risks can be taken and a lower standard of care can be accepted. Policy decision and realistic approach to dealing with emergencies
• Watt v Hertfordshire County Council (1954) - Claimant was a fire-fighter. Road accident a short distance from the fire station and fire service called to release a woman trapped underneath a lorry. A jack was need to release the injured woman but the normal vehicle for carrying the jack was unavailable They put it in another truck but couldn’t secure the jack. The jack fell on and injured the fire fighter
• Court held they had not breached duty as it was an emergency situation

Question 31

Causation/Remoteness of damage

Answer 31

• The legal term for causation is “damage”
• There are two parts to damage: Causation and Remoteness of Damage
• It is for the claimant to prove that the damage suffered was caused by a breach of duty and that the loss is not too remote.

Question 32

causation

in negligence

Answer 32

C must prove: Factual causation and Legal causation
(If factual causation can not be proved there is not a need to consider legal causation)

Factual causation is decided by the ‘But For’ test.
But for the defendants act or omission the injury or damage would not have occurred.

Question 33

Barnett v Chelsea and Kensington Hospital Management Committee (1969)

Answer 33

Mr Barnett went to hospital complaining of severe stomach pains and vomiting after drinking tea. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died hours later from arsenic poisoning. His widow sued the hospital claiming the doctor was negligent. She was able to prove the doctor had a duty of care that was broken.

However, evidence provided showed it was already too late to save him regardless. This meant that the death was not caused by the doctors breach of duty thus the claim failed

Question 34

Wilsher v Essex Area Health Authority (1988)

Answer 34

A premature baby was given too much oxygen by a junior doctor. This left him totally blind in one eye and partially sighted in the other. The condition could have been caused by the excess oxygen he had been exposed to OR Caused by four other factors unrelated to the oxygen, but related to the premature birth.

Held on appeal - It was not for D to show an alternative cause but for C to show that the negligence had caused the damage. Or had a least materially contributed to it, and he could not.

Question 35

Legal causation

in negligence

Answer 35

must be no intervening act

Question 36

Knightley v Johns (1982)

Answer 36

As a result of Mr John’s negligent driving his car overturned in a tunnel. Two police officers on motorcycles arrived at the scene and were told by the senior officer to close the tunnel. They took the decision of driving on through the tunnel on the wrong side of the road on a blind bend rather than going the long way round.
Unfortunately one of the officers, Mr Knightly, was involved in a head on collision with an oncoming vehicle driven by Mr Cotton.

He brought an action against Mr Cotton, Mr John, the senior officer and the Chief Constable of West Midlands. The main point was whether Mr Johns remained liable or whether there was an intervening act.

HELD: The senior officer’s instructions and failure to close the entrance to the tunnel were negligent and broke the chain of causation. Thus the claimant was entitled to full damages from the senior officer and Mr John was not liable.

Question 37

Remoteness of damage

Answer 37

Only losses which are not too remote, or too far removed from the original negligence, are recoverable.

• The test for remoteness of damage is whether a loss is a reasonably foreseeable consequence of the defendant’s negligence.

• If a loss is not reasonably foreseeable then it is NOT recoverable.

• This approach was established in the decision of The Wagon Mound (No 1)
(1961)

Question 38

The Wagon Mound (No 1) (1961)

Answer 38

Due to the Ds negligence, oil had been spilled in the water of a harbour, and the oil had drifted across the claimant’s wharf where welding work was being carried out.

• Having taken advice that it was safe to do so, C continued welding secure in the knowledge that oil in the sea at sea temperature was not flammable.

• Nevertheless, the oil ignited, and the ensuing blaze badly damaged C’s property.

• However, C’s action failed as, although pollution damage is a reasonably foreseeable consequence of spilling oil in the sea, fire damage is not!

Question 39

Eggshell skull rule

Answer 39

D must take C as they find him - Smith v Leech Brain (1962)

Question 40

Smith v Leech Brain (1962)

Answer 40

A widow brought a claim against the defendant under the Fatal Accidents Act for the death of her husband. The defendant employed the husband. As a result of their negligence he incurred a burn to his lip. The lip contained pre-cancerous cells which were triggered by the injury sustained. He died three years later from cancer.

Held: The burn was a foreseeable consequence of the defendant’s negligence and this resulted in the death. The defendant was liable for his death. It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell skull rule applies and the defendant must take his victim as he finds him.