Negligence Flashcards
(24 cards)
What is the 3-stage test for negligence?
Did D owe C a duty of care? / Was this duty breached? / Did the breach cause damage to C?
What must be proved first in negligence?
That the D owes the C a duty of care.
What case established the test for duty of care and what principle?
Donoghue v Stevenson – the neighbour principle: you owe a DOC to anyone who you ought to have considered as being affected by your act or omission.
How was the neighbour principle updated and in what case?
Robinson v CCWY – if there is a clear and obvious relationship between C and D then it will be fair, just, and reasonable to establish a DOC by analogy.
How do you apply the Robinson test in obvious cases?
There is a clear and obvious relationship between C and D as… e.g. doctor/ patient, student/ teacher etc. Therefore, it is fair, just and reasonable to impose a DOC on D.
What must be proved in Stage 2?
The D must have breached the duty of care to the C.
What is the test for breach and what case defined it?
This is an objective test. Alderson B in Blyth v Birmingham Waterworks defined a breach as “Doing something a reasonable man wouldn’t do or not doing something a reasonable man would do”. This shows negligence can occur through an act or omission.
What does this test essentially mean?
The D will be in breach if they did not act reasonably.
What should be considered first in breach of duty?
What characteristic you need to apply to the D in your question (this will then be the standard by which to judge whether they acted reasonably).
How is a D judged if they are an expert or possess a particular skill?
Judged by the standards of other reasonably competent professionals – Bolam / Bolitho (e.g. doctor / mechanic / builder).
What is the side rule for expert situations?
If the C consents to the risk (e.g. hospital procedure), then the D will not necessarily be in breach if the risk arises, unless they are reckless – Montgomery v Lanarkshire Health Care.
How is a learner/inexperienced D judged?
Judged by the standards of someone experienced and competent (compared with a person of average skill) – Nettleship v Weston.
How are children judged?
Judged by the standards of a reasonable child of a similar age – Mullins v Richards.
How is a D judged if they fall into no special category?
Judged to the standard of the reasonable man performing the same task – Vaughan v Menlove.
What is the purpose of risk factors in breach of duty?
Risk factors can raise or lower the standard of care required of the reasonable person.
What is the first risk factor and what case supports it?
Probability of harm – More care is needed if there is a higher probability of harm. Reasonable man must take precautions against bigger risks – Bolton v Stone.
What is the second risk factor and what case supports it?
Seriousness / Magnitude of the risk – Bigger risk of serious injury = more care needed – Paris v Stepney Council.
What is the third risk factor and what case supports it?
Cost and Practicality of Precautions – If the cost of taking precautions is too great, D may not be in breach – Latimer.
What is the side rule regarding social utility of risk?
Some risks have benefits for society (social utility), so there is no breach – Watt v Hertfordshire Council.
What must be proved in Stage 3?
That the breach of duty has caused the damage to the C (causation).
What is the first type of causation and its test?
Factual causation – “but for” test: But for the D’s actions/omissions, would the damage have occurred? – Barnett v Chelsea Hospital.
What is the second type of causation?
Legal causation – remoteness of damage: Was the damage to C reasonably foreseeable, or too remote? – Wagon Mound No 1.
What is the side rule from Hughes v Lord Advocate?
D need not predict the precise way in which injury was caused, as long as injury of the same type was foreseeable.
What is the Thin Skull Rule and supporting cases?
Defendant must take his victim as he finds him, and the chain of causation will not be broken – Robinson v Post Office / Smith v Leech Brain Co.
