Negligence

Question 1

Duty of care

Answer 1

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

Question 2

Establish a breach of duty of care

Answer 2

Reasonable man test - objective - Blythe v Birmingham Waterworks Co

Question 3

Class of defendant as a part of establishing breach (only use when appropriate)

Answer 3

Is the defendant a professional - Bolam v Friern
○ Is there a learner - held to standard of reasonably competent person Nettleship v Weston
○ Inexperienced person - held to standard of reasonably competent person - Wells v Cooper
○ Is there a child Orchard v Lee or a sports person (Condon v Basi)

Question 4

factors that may raise or lower the standard as a part of establishing breach: (don’t try and make them all fit!!)

Answer 4

○ 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

Question 5

Establishing damage/causation

Answer 5

• Factual causation aka ‘But for’ test – Barnett v Chelsea & Kensington
• Legal Causation - remoteness of damage – Wagon Mound (No 1)
• Thin skull rule - Smith v Leech Brain & Co

Question 6

Defences

Answer 6

Contributory negligence - Law Reform (Contributory Negligence) Act 1945
○ Partial defence
○ Where the C fails to act prudently ie acts carelessly - Froome v Butcher

Volenti - consent:
○ Complete defence
○ Must prove the C had knowledge of the precise risk involved and took it - Stermer v Lawson

Question 7

Negligence remedies

Answer 7

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

Two heads of damages
1. Special damages: Compensate for quantifiable financial losses already incurred before the trial (e.g., medical bills, travel costs, past lost income).
2. General damages: Compensate for non-monetary losses and future financial losses (e.g., pain and suffering, loss of amenity, future loss of income).