Negligence Flashcards
(26 cards)
Negligence defined in
Blyth v Birmingham Waterworks 1856 as failing to do something which the reasonable person would do or doing something which the reasonable person would not do
Negligence can come from
An act or an omission
In order to establish liability, C must prove on the balance of probability:
-they were owed a Duty of Care by D
-that D was in Breach of Duty
-that C suffered Damage caused by D, which was not too remote
Duty of Care
establish a legal relationship between the parties, widening or narrowing the scope of liability in negligence
DOC is established in one of two ways
-by applying existing precedent or statutory obligation (Robinson Approach)
-where no previous precedent exists, applying the Caparo test
The Robinson Approach
Robinson v CC West Yorkshire 2018
- SC emphasised judge should first look to existing precedent when establishing a duty
-Donoghue v Stevenson 1932 (Manufacturer and consumer)
Examples of well established duties
-doctor and patient (Bolam v Barnet Hospital)
-drivers and other road users (Nettleship v Weston)
-employer and employee (Paris v Stepney)
-instructor and learner (Day v High Performance Sports)
-teacher and student (Simonds v Isle of Wight Council)
-parent and child
The Caparo test
-was the harm reasonably foreseeable
-was there sufficient proximity
-is it fair, just and reasonable to impose a duty
Was the harm reasonably foreseeable?
Objective test- must be foreseeable that D’s act or omission could cause harm to someone, applied in a general way, without knowledge of what D did or did not do
-Kent v Griffiths 2000
Was there sufficient proximity?
‘closeness’ between C and D, can be physical or through a legal relationship
-Bourhill v Young 1943 -not physically close enough
Is it Fair, Just and Reasonable to impose a duty?
Best interests of society, policy-based decision
-Hill v CC West Yorkshire 1990
Breach of Duty
-Reasonable person test
-Risk Factors
The Reasonable Person Test
Objective, D will have breached their duty of care if he or she fails to act in a way which a reasonable person would have or would not have
-Amateurs can be judged against other reasonably skilled amateurs doing the same task - Wells v Cooper 1958
What is a reasonable person?
Of average intelligence and self-control, and possesses average skill and experience -Glasgow Corporation v Muir 1943
Risk Factors
Can raise or lower the standard of care expected from a reasonable person
-Probability of harm, Haley v LEB 1965
Examples of Risk Factors
-Probability of harm
-Seriousness of potential harm - Paris v Stepney 1951
-Cost and practicality of taking precautions -Latimer v AEC 1953
-Potential benefits to society - Day v High Performance Sports 2003
-Unknown Risks - Roe v Minister of Health 1954
Damage
-Factual causation
-Remoteness
Factual Causation
‘but for’ test, But for D’s act or omission would C have suffered damage?
-Chester v Afshar 2004
-Knightley v Johns 1982 - Intervening Acts
Remoteness
C can only claim for types of loss that are a reasonably foreseeable result of D’s breach
-The Wagon Mound 1961
Thin Skull Rule
If type of damage is reasonably foreseeable, but it is much more serious because C had a pre-existing condition, then D is liable for all subsequent consequences
-Smith v Leech Brain 1962
Defences to Negligence
-Contributory Negligence (partial defence) Froom v Butcher 1975
-Consent (complete defence) C knew the nature and extent to risk of harm and voluntarily agreed to it - Morris v Murray 1991
Remedies in Negligence
-Special damages
-General damages
Special Damages
-cover pre-trial expenses
-pecuniary losses (financial terms)
-loss of property
General Damages
-post trial losses
-pecuniary and non-pecuniary losses
-future losses
-pain and suffering
-loss of amenity
-specific injuries
