Negligence Evaluation Flashcards
(4 cards)
Evaluation of Duty of care - Caparo Test
A duty of care is tested using the Caparo test and the neighbour principle. This test was established in the case of Caparo V Dickman. The Caparo test has 3 element the first element was the damage or harm reasonable foreseeable the second element is there a sufficiently proximate relationship between the claimant and the defendant and the third element of the test is is it fair, just and reasonable to impose a duty of care on the defendant. The test of duty of care is through this is because for the defendant to have a duty of care , it must meet all three parts of the test however although the Caparo test is through as it is requirement to meet all three elements of this test this means that failure to meet all parts of the test means that the defendant is not liable in negligence. This allows for the defendant to avoid liability for their actions this can be seen in the case of Bourhill V Young. where a motorcycle accident had occurred and a pregnant women got off the tram she approached the scene and suffered shock from what she saw as a result she gave birth to a still born baby it was decided that there was no duty of care due to the fact there was not sufficient proximity of relationship between the claimant and the defendant however this can create uncertainity this can be seen in the case of mcloughlin v O’brian this is because in the case 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 this can create confusion in precedent for duty of care
Evaluation of duty of care paragraph-Neighbour princple
A duty of care is also tested using the neighbour principle. This principle was established in the case of Donoghue V Stevenson this where Mrs Donoghue was given a drink by a friend who went to a cafe and brought her a ginger beer. After drinking some , she poured out some and found a dead snail she suffered mental and physical anguish she was unable to sue under contract law but she was able to claim for negligence the use of negligence principle is outdated this is because it was established in the 1932 and it neglects to take in account the changes in society and the modern approach however the neighbour princple is it soes not require additional parts . it makes establishing a duty of care simple
evaluation Duty of care paragraph - first element of the caparo test
The first element of the caparo test . the first part was the damage or harm reasonable foreseeable this highlights highlight how the defendants could have done something to prevent the harm or damage occurring. the idea of the event of being reasonably foreseeable is very vague and subjective as main events such as intervening acts or unpredictable natural disators such as storm cannot be foreseen however it allows the defendant to be held liable as something could have been done to prevent the end result
Evaluation of duty of care paragraph–the third element of the caparo test
The Caparo test the last part of the Caparo test is it fair, just and reasonable to impose a duty. This is element takes it into consideration is it fair allows the defendant to have a full opportunity as both sides are examine however it can lead to unfair decision this is because the idea of fair is can be subjective as judges have different views of what is fair
