negligence

Question 1

what are the three elements to a successful negligence claim

Answer 1

the defendant owed the claimant a duty of care
the defendant breached that duty of care
the breach caused the damage to the claimant

Question 2

define negligence

Answer 2

Blythe v Birmingham Waterworks

‘failing to do something which a reasonable person would do or doing something which a reasonable person would not do

Question 3

what is a duty of care

Answer 3

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 4

how is a duty of care established

Answer 4

Robinson v CCWY:
Is there an existing precedent?
Is there an existing statute?
where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law ( incremental approach)

Question 5

how is a breach in duty established

Answer 5

Reasonable man test - objective
what would a reasonable person of ordinary prudence have done in the defendant’s situation?
Blythe v Birmingham Waterworks Co

Question 6

class of the defendant

Answer 6

the standard may differ according to the type of person who owes the duty
eg - Professionals
Children
People engaged in sport
The disabled

Question 7

professionals

Answer 7

When a person has undertaken a duty which requires extraordinary skill, a higher objective standard of care will be expected.
the standard of a reasonable person of that profession’.
Bolam v Friern

Question 8

children

Answer 8

standard of a duty of care owed by a child is that of an ordinarily careful and reasonable child of the same age.
mullins v richards

Question 9

sports

Answer 9

The standard of care in sport is again objectively tested but this varies within the context of the circumstances.
codon v basi

Question 10

factors that vary the standard of care

Answer 10

Foreseeability of risk - Bolton v Stone
Size of risk - Paris v Stepney
Practicalities of precautions - Latimer v AEC Ltd
Social utility - Watt v Hertfordshire CC
common practice - Thompson v Smith Ship Repairers

Question 11

factual causation

Answer 11

‘But for’ test –
Barnett v Chelsea & Kensington

Question 12

legal causation

Answer 12

Legal Causation - remoteness of damage
reasonably foreseeable consequence
Wagon Mound No1

Question 13

thin skull rule

Answer 13

defendants will be liable even if the reason why the damage is more serious than could be expected is due to some weakness or infirmity in the claimant.
smith v leech brain

Question 14

defences to negligence

Answer 14

contributory negligence
consent - volenti

Question 15

contributory negligence

Answer 15

Law Reform (Contributory Negligence) Act 1945
The defence will allege that the claimant partly contributed to his injuries.
It is a PARTIAL defence
Froom v Butcher

Question 16

volenti

Answer 16

Complete defence
Must prove the C had knowledge of the precise risk involved and took it
Stermer v Lawson

Question 17

types of losses

Answer 17

Pecuniary losses (financial losses) eg pre-trial and future losses that can be calculated in money terms
Non-pecuniary losses (non-financial losses) eg for pain and suffering, loss of amenity

Question 18

types of damages

Answer 18

Special damages compensate for all the expenses eg future costs of medical care and future loss of income, loss of earnings and travel expenses
General damages compensate for the direct physical and/or psychological effects of the negligence eg pain & suffering, loss of amenity and loss of future earnings

Question 19

mitigation

Answer 19

Claimants are required to mitigate any loss. The law states that an injured party cannot recover damages for any losses which could have been avoided by taking reasonable steps

Question 20

how are damages paid

Answer 20

lump sum
structured settlement