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Negligence Flashcards

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1
Q

What does negligence concern?

A

A breach of a legal duty to take care, with the results that damage is caused to the claimant. The aim being to compensate people who have suffered damage

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2
Q

What is negligence based on?

A

Fault - to succeed a claimant will need to show fault on the part of the person who caused the accident

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3
Q

What three types of harm does negligence protect people from?

A
  • Personal injury
  • Damage to property
  • Economic loss
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4
Q

What are the three main elements of negligence?

A
  • The D owed the C a duty of care
  • The D breached the DOC
  • The breach caused the damage to the C
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5
Q

What is the definition of negligence and what case lays this out?

A

Blythe v Birmingham Waterworks -
‘failing to do something which a reasonable person would so or doing something which a reasonable person would not do’

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6
Q

Who are the parties to a negligence claim?

A

Claimant - person harmed
Defendant - caused the harm

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7
Q

What is a burden of proof?

A

It is entirely on the shoulders of the claimant. They must show, on the balance of probabilities, that the D is liable. In court the C will have to provide the evidence to show the fault

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8
Q

What is the definition of duty of care?

A

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’

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9
Q

What is the main groundbreaking case for duty of care?

A

Donoghue v Stevenson

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10
Q

What is the legal principle of duty of care?

A

There is a duty of care to take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor

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11
Q

What’s the rule surrounding establishing a duty of care and what case states this?

A

Robinson v Chief Constable of West Yorkshire Police:
- See if there is an existing precedent setting out the duty
- See if there is statutory authority
- In the absence of these, use the circumstantial approach and established principles

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12
Q

What is meant by is there an existing precedent?

A

An existing precedent is a principle or rule (decision) established in a previous case. The case will come from a superior court and the court deciding the case will have to follow the previous decision: Donoghue v Stevenson

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13
Q

What is meant by there is a statutory authority?

A

Law enacted by parliament or law made by those who have had legislative powers delegated to them, for example, the local council. Most often than not, it come in the form of an Act of Parliament

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14
Q

What are 5 Acts of parliament which show statutory authority?

A

Road Traffic Act
Rule 239 of the Highway Code
Health and Safety at Work Act 1974
Occupier’s liability Act 1957
Occupier’s liability Act 1984

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15
Q

Under the incremental approach the judge will take into account many factors when deciding whether it is fair, just and reasonable to establish a duty of care. What are these factors?

A

Loss allocation
Protection of professional
The floodgates argument
Deterrent value

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16
Q

What is meant by loss allocation?

A

The allocation of each payment date of the aggregate amount of any realised losses or supplementary realised losses, not applicable, not previously allocated persuasive condition 6 and for which the conditions for loss allocation pursuant to provision 6

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17
Q

What is meant by protection of professionals?

A

If a C can demonstrate that a professional negligent action/failure to act has caused the C damage or loss, then they can be professionally liable for this

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18
Q

What is the floodgates argument?

A

in some cases it’s expressed to be a constraint upon when a D will owe a duty of care, in others it’s expressed to be a limitation upon the remoteness of damage for which a D should be held responsible for

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19
Q

What is meant by deterrent value?

A

Negligence liability gives the providers of goods and services an incentive to take all cost-justified precautions in the design and manufacture of what they sell

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20
Q

What is a breach of duty of care?

A

A person breaches their duty when they fall below a particular standard of behaviour. Blyth v Proprietors of the Birmingham waterworks - held that the standard of care required should be measured according to an objective method of testing

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21
Q

How do you measure a breach of duty to an objective standard?

A

The objective test addresses the ‘reasonable person’ and what the reasonable person of ordinary prudence would have done in the D’s situation. The D’s personal characteristics are typically ignored

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22
Q

What’s the rule of breach of duty of care when it comes to learner drives?

A

Nettleship v Weston - the D who was a learner driver owed the same duty of care as a reasonable driver. No matter if you have been driving 20 minutes or 20 years, the same standard of care is owed

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23
Q

What is meant by class of defendant?

A

Although the standard of care is measured objectively, the courts have looked at whether the standard may differ according to the type of person who owes the duty

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24
Q

What are the 5 classes of defendant that the court will look at when establishing a breach of duty of care?

A

Professionals
Children
People engaged in sport
The disabled
People using equipment

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25
What is the rule when it comes to professionals and a breach of duty of care?
When a person undertakes a duty which requires extraordinary skill, a higher objective standard of care will be expected. Such persons may, therefore, be negligent though they do their best. The standard is 'the standard of a reasonable person of that profession'
26
When is comes to the breach of duty of care by professionals, what are the three cases?
Bolam v Friern Hospital Management Committee Montgomery v Lanark Shire Health Board Whitehouse v Jordan
27
What is the rule when it comes to children and breaches of duty?
Children are generally not expected to have the same skill or understanding as an adult and therefore the standard of a duty of care owed by a child is that of an ordinary careful and reasonable child of the same age
28
What are the 2 cases for the rules surrounding children and breaches of duty of care?
Mullins v Richards Orchard v Lee
29
What is the rules surrounding sports and breach of duty of care?
The standard of care in sport is again objectively tested but varies within the context of the circumstances. Thus there will be a higher degree of care required of a player in a first division football match than a player in a local league football game
30
What are the three cases that demonstrate breaches of duty of care in sports?
Condon v Basi Pitcher v Huddersfield Town Football Club McCord v Swansea City AFC
31
How might the standard of care vary?
It might be that the basic Blyth objective test is enough to prove the breach but to assist the judge there are various factors that can, if necessary, be taken into account when determining the standards by which the D's behaviour should be measured
32
What are the 5 factors which may vary the standard of care owed?
Foreseeability/ size of risk Special characteristics of C or gravity of risk The cost/practicability of precautions Potential benefits of risk Common practice
33
What is meant by foreseeability of risk as a factors varying the standard of care? and what case shows this?
Establishing that a D isn't negligent if the damage to the plaintiff wasn't a reasonably foreseeable consequence of his conduct: Bolton v Stone
34
What is meant by special characteristics of C or gravity of risk as a factors varying the standard of care? and what case shows this?
A higher standard of duty of care may be required for individuals who have certain characteristics: Paris v Stepney - the employer should have provided the C goggles because the seriousness of the harm to him would have been greater than that experienced by workers with sight in both eyes
35
What is meant by the cost/practicability of precautions as a factors varying the standard of care? and what case shows this?
IT was held in Latimer v AEC Ltd that the D hadn't been negligent and they had taken all reasonable precautions that could've been taken to minimise any possibility of risk to their employees. It was not reasonable to shut down the entire factory so there was no breach of duty
36
What is meant by potential benefits of risk as a factors varying the standard of care? and what case shows this?
Watt v Hertfordshire County Council: Watt was injured performing his duty as a fireman. The incident caused a heavy jack to fall onto his leg. The court ruled that the life of the person that has to be saved was more important than anything else and that the council wasn't liable for tort or negligence which caused injured to the fireman
37
What is meant by common practice as a factors varying the standard of care? and what case shows this?
Thompson v Smith Ship Repairers: It was held that from 1963, employees exposing employees to noise levels exceeding 90 dB were in breach of duty unless adequate ear protection was provided
38
How can the causation of negligence be measured?
Factual causation - 'but for' test Legal causation - remoteness of damage
39
What is the factual causation of negligence?
Establishing factual causation requires the claimant to not have suffered injury or damages 'but for' the conduct of the defendant: Barnett v Chelsea and Kensington Hospital Management
40
What happens when there is the possibility of more than one cause of the C's injuries/damages?
It creates a problem when trying to prove a causal link. The court is forced into the position of trying to determine which of the possibilities is the actual cause of the damage suffered: Wilsher v Essex AHA and Fairchild v Glenhaven Funeral Services
41
What is the legal causation of negligence?
It must be reasonably foreseeable damage - only losses which are not too remote, or too far removed from the original negligence, are recoverable.
42
What is the test for legal causation?
Whether a loss is a reasonably foreseeable consequences of the defendant's negligence: The Wagon Mound (no.1) and Bradford v Robinson Rentals
43
What is the rule that must be considered when establishing causation for negligence?
Thin skull rule: the D 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 C: Smith v Leech Brain & Co Ltd
44
What are the 2 defences to negligence?
Contributory negligence Consent (aka volenti non fit injuria)
45
What is contributory negligence?
The defence will allege that the C contributed to his injuries. It's a partial defence and allows the court to apportion blame between the 2 parties thus reducing the C's damages
46
What Act provides that any damages awarded to the C can be reduced according to the level or extent to which the C has contributed to his own harm?
Law Reform (contributory negligence) Act 1945
47
What must a D do to set up the defence of contributory negligence?
- Show that the C's behaviour was below the standard of the reasonable person; and - That this behaviour contributed to the C's losses
48
What cases demonstrate contributory negligence?
Armstrong v Cottrell - D's claim failed Froom v Butcher - D's claim succeeded
49
What is meant by consent as a defence for negligence?
This is a complete defence thus resulting in the D paying nothing by way of damages. To succeed, the D would have to show that the C had knowledge of the precise risk involved, had excercised free choice by the C; and that the C had voluntarily accepted the risk
50
What are the two cases which demonstrate consent as a defence to negligence?
Stermer v Lawson - no consent Morris v Murray - consent
51
What are the two main remedies for negligence?
Damages - aim to compensate Injunctions - aim to stop/prevent a behaviour
52
What is the general aim of an award of damages in tort?
To put the injured party in the same position as they would have been in if the tort had not occurred
53
What are compensatory damages?
The aim is to restore the person to the position they would have been in if the tort hadn't occurred
54
What are the two types of losses?
Pecuniary losses Non-pecuniary losses
55
What are pecuniary losses?
Financial losses that would cover: - Loss of earnings as a result of injury - House being worth less than paid for because of e.g. surveyors negligent survey - The cost of a new car
56
What are non-pecuniary losses?
non financial losses and are difficult to attach to a price tag e.g: - Pain and suffering from injury - Loss of amenity
57
How are pecuniary and non-pecuniary losses calculated?
Pecuniary losses - measured in money Non-pecuniary losses - accountants and taxation lawyers are required as part as part of the calculation will be speculative
58
What are the two types of damages?
Special damages General damages
59
What are special damages?
Covers pecuniary losses and the C's out of pocket expenses from the date of the accident to the date of judgement: - Loss of Wages - Medical expenses - Property damage - Funeral costs - Repair bills
60
What are general damages?
They cover non-pecuniary losses and can't be quantified at the time of trial, and instead are more prospective in nature. The court will ask the C to demonstrate what their future costs and losses are likely to be. Many long term injuries are difficult to quantify/measure accurately: - Pain and suffering - Loss of amenity - Future loss of earnings - Future medical expenses - Loss of life expectancy
61
For an eye injury which is relatively minor and a full recovery is expected within weeks, how much is the compensation claim?
£1,760 to £3,150
62
For a very serious broken leg e.g. multiple fractures limiting movement, how much would the compensation claim be?
Up to £103,000
63
What is meant by mitigation of remedies in negligence?
C's are required to mitigate any loss. The law states that an injured party can't recover damages for any losses which could have been avoided by taking reasonable steps. If the issue was a personal injury, for example whiplash, the C would be expected to seek medical help and do as advised
64
How are damages for negligence paid?
Damages can be paid in a lump sum or by a structured settlement
65
What are structured settlements?
Rather than getting the compensation in one large sum, structured settlements allow for periodic payments. Such settlements usually involve an interim payment to cover costs and expenses met by the C before settlement. The second component is a series of payments normally payable in regular instalments
66
What is meant by a lump sum settlement?
When the courts make an award for pain and suffering or loss of amenity, they can award a lump sum. This is a once only award. The C can't come back to court to say that he has exhausted the damages
67
What Act allows for a structured settlement to be paid for pecuniary losses?
Courts Act 2003
68
What order allows the court to rule the damages should be paid periodically, and then reviewed upon the deterioration or improvement of the C's injury?
Damages ( Variation of Periodical Payments) Order 2005
69
What are the evaluation points on the idea that there are too many obstacles in the way of a claimant trying to obtain compensation?
- Fact it is based on fault -> C has to do all the work - To succeed, a duty of care must be proven, and that they breached it, that the damage wasnt too remote -> heavy burden of proof on C
70
What are the evaluation points on the idea that negligence is no longer fit for purpose as too many people are encouraged to sue?
- Media and growth in the claims company has not helped -> doctors too worried to do something 'different' in fear of being sued - Sometimes it appears to easy to claim or where insurance companies simply pay out
71
What are the evaluation points on the idea that negligence needs reforming?
- Reform has been proposed -> V's are compensated through a state-run compensation scheme which pays out compensation to all V's without the need t prove fault - The UK might follow New Zealand's example and have a no fault accident compensation scheme. There is no right of the C to sue in court, the Accident Compensation Commission deals with all claims
72
When writing out a negligence question, what elements are required to be talked about?
- Duty of care - Breach of duty of care - Causation - Defences - Remedies

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