Negligence Flashcards
(28 cards)
Definition of negligence
Negligence is an act or failure to act that falls below a reasonable standard and causes injury or damage This was defined in the case of Blyth v Birmingham waterworks company 1856
The three elements that must be proven for negligence
3 elements must be proved:
· A duty of care was owed by D to C
· D breached that duty
· The breach of duty caused the injury/damage
Duty of care
A duty of care is established using the neighbour principle and the Caparo test. The neighbour principle was first established in Donoghue v Stevenson. A modern version was adapted in order to establish a duty of care. This was established in the case of Caparo V Dickman. This led to the Caparo Test .
Caparo v Dickman
Caparo v Dickman (1990) The claimant company wanted to take over another company – Fidelity Limited. They looked at the statutory accounts prepared by the defendant, which showed that the company made a profit. Based on these accounts, the claimants decided to take over Fidelity. After completing the purchase, they inspected the detailed accounts which showed a large loss. They sued the defendant in negligence for their loss. The House of Lords, when deciding whether the defendant owed a duty of care, set the three part test. They decided that the defendant did not owe a duty of care as the accounts were prepared for Fidelity and for statutory reasons, and not for prospective buyers.
Donoghue V Stevenson
Donoghue v Stevenson (1932) Mrs Donoghue went to a café with a friend who bought her a bottle of ginger beer and ice cream. The bottle had dark glass so that its contents could not be seen. After drinking some, Mrs Donoghue poured out the remainder of the ginger beer and saw that it contained a dead (and decomposing) snail. Because of the impurities in the drink, she suffered physical injuries and mental anguish from what she saw. She wanted to claim compensation for these injuries but she could not use contract law as she had not bought the drink. Instead she sued the manufacturers of the drink in negligence, claiming that they owed her a duty of care and were at fault in the manufacturing process.
The Caparo Test
This test decides whether a duty of care exists in situations where there is no precedent for a duty of care
The Caparo Test has 3 parts
- Was damage or harm reasonably foreseeable
- is there a sufficiently proximate close relationship between the claimant
- Is it fair, reasonable to impose a duty of care
the damage or harm must have been reasonable foreseeable case
This is an objective test. this is to establish would a reasonable person in the defendant’s position have foreseen that someone in the claimant’s position might be injured this can be seen in the case of Kent V griffths
the damage or harm must have been reasonable foreseeable case -(Kent V Griffiths )
The claimant was suffering an asthma attack and an ambulance was called to take her to hospital despite repeated assurances by the control centre and for no obvious reason the ambulance failed to arrive within a reasonable time and as a result the claimant suffered a respiratory attack.
Decision -It was reasonably foreseeable that the claimant would suffer further unless of the ambulance did not arrive promptly
A duty of care came into existence when the control centre accept the call and as they failed in this duty they were liable
There must be a proximity of relationship
A Duty of care can only exist if the relationship between the claimant and the defendant is sufficiently close or proximate . Proximity just means closeness there can be proximity by space time and relationship this can be seen in the case of Bourhill v Young
There must be a proximity of relationship (Bourhill v Young)
A pregnant women heard an accident as she got off the tram . The accident was caused by a motorcyclist who died in the accident. She approached the scene and sae blood and suffered shock from what she saw. As a result she gave birth to a still born baby and she sued the relative of the deal motorcyclist
Under the neighbour test she had to prove she was proximate to the motorcyclist so he owned her a duty of care . The House of lords decided that he could not anticipate that if he was involved in an accident . It would cause mental capacity a bust and her
He was not proximate and did not owe her a duty of care
A case to contrast to Bourhill v Young (Mcloughlin v O’Brian)
A mother was told her family had been injured in a car accident. She immediately went to hospital where she saw her family in various states of injury and learned that her son had acted. The aftermath of the accident was described by lord Wilberforce as distress in extreme. The claimant suffered shock, depression and personality change . The house of lords reversed the decision there was proximity due to the fact that she went to the hospital there was a close tie of affection
It must be fair, just and reasonable to impose a duty
The last element of the Caparo test is is it fair ,just and reasonable to impose a duty of care this gives the courts some flexibility even if they they decided that harm was foreseeable and the parties are sufficiently close they can still decide that there is no duty of care owned by the defendant to the claimant. The court makes the decision by a matter of policy
It must be fair,just and reasonable to impose a duty case of Hill V Chief Constable of West Yorkshire)
The Yorkshire Ripper, a serial killer had been attacking and murdering women in Yorkshire and across the north of England. The claimant’s daughter was his victim before he was caught.By the time of her death they fail to do it. The claimant alleged that the police owned her daughter a duty of care
Decision : House of Lordsd said that the relationship between the victim and the police was not proximate for the police to owe a duty of care to the general victim
It was not fair just and reasonable for the police to owe a duty of care
Case for is is it fair,just and reasonable to impose a duty to impose a duty of care
(Mitchell V Glasgow City Council
A claim was brought by the family of a man who was killed by his neighbour who had threatened the deceased and others on the estate. The killing took place after a meeting called by the Council to discuss the behaviour. It was alleged that the Council owed a duty of care to the deceased to warn him about the meeting so that the deceased would have been more prepared. It was decided that the Council did not owe a duty to the deceased as it was not fair, just and reasonable for the Council to warn the deceased of the steps they were taking to deal with the offending behaviour. Further, a duty to warn another person that he is at risk of loss, injury or damage as the result of the criminal act of a third party will arise only where the person who is said to be under that duty has, by his words or conduct, assumed responsibility for the safety of the person who is at risk.
Established duty of care situations
(Robinson Principle)
This is because of the case of Robinson v West Yorkshire police . The supreme court stated that there are a number of situations in which the courts recognise a duty of care
These arise due a special relationship between the parties
Parent to child doctor to patient
etc
Breach of duty
A breach of duty is established using the standard of a reasonable person. The reasonable is the ordinary person doing the same tasks as the defendant This is an objective test. The standard of care may be different depending on the characteristics of the defendant
Characteristics of the defendant that impact the standard of care
(Age, case of Mullins V Richards)
The age of the defendant will make the standard of care lower of higher this can be seen in the case of Mullins V Richards where the defendant was not liable as she meet the reasonable standard of a 15 year old
Characteristics of the defendant that impact the standard of care(learners) Case :Nettleship V Weston
learners especially learner drivers are help to a higher standard this can be seen in the case of Nettleship V Weston where the defendant was held to be liable as she did not meet the standard of a competent experienced drivers
Characteristics of the defendant that impact the standard of care (Professionals)
Professionals are held to a higher standard. For Professionals for a breach to be determined the bolam test must be used
Bolam Test
The Bolam test has 2 parts
1. Does the defendant’s conduct fall below the standard of the ordinary competent person of that profession
is there a substantial body of opinion that would support this course of action by the defendant
Assessing the breach of duty
Risk precautions and benefits
- Special charcteristics of the claimant-age disabilities
- The size of the risk -e.g the recurranec of incident over time
- Appropriate e.g healthcare and safety ,risk assessment
- Knowledge of the risk e.g previous issues
5.public benefits
assessing the breach the breach- the special characteristics of the claimant (Paris V stephey Borough Council)
Paris v Stepney Borough Council (1951) The claimant was known to be blind in one eye. He was given work to do by his employers which involved a small risk of injury to his eyes, but he was not given any protective goggles. While doing this work, his good eye was damaged by a small piece of metal and he was left totally blind. His employers were held to have broken their duty of care to him.
Assessing the breach -size of the risk case-Bolton V stone
Bolton v Stone (1951) A cricket ball hit the claimant in the street as she passed a cricket ground. Evidence showed that there was a 17-foot-high fence around the ground and the wicket was situated a long way from the fence. Also, balls had been hit out of the ground only six times in the previous thirty years. It was decided that the cricket club had done everything it needed to do in view of the low risk, and it had not breached its duty to the claimant.
assessing the breach-cost and practicability of precaution
Case :Latimer v AEC LTD
Latimer v AEC Ltd (1953) A factory was flooded and, as the floor was very slippery with a mixture of water and oil, the workers were evacuated. Sawdust was spread on the floor of the most used areas to minimise the risk of slipping. Workers were then required to go back. One worker slipped and was injured. The court decided there was no breach of duty. The factory owners had taken all reasonable care and steps to reduce the risk of injury. There was no requirement on them to incur expense to eliminate every possible risk to their employees.
