Negligence Evaluation Flashcards
(8 cards)
Duty of care evaluation paragraph -Caparo Test
A duty of care is tested using the caparo test and the neighbour principle. The Caparo Test has 3 Parts was the damage or harm reasonable foreseeable, s there a sufficient proximity relationship between the claimant and the defendant . Is it fair,just and reasonable to impose a duty. The test for establishing a duty of care is through this is because for the defendant to have a duty of care . it must meet all 3 parts of the tests however although the caparo test is through ,failing to meet all 3 parts of the caparo test meas that the defendant is not liable in negligence. This is seen in the case of Bourhill v Young where a pregnant women heard and an accident as she got of the tram. She approached the scene and suffered shock from what she saw and she gave birth to a still born baby she was unsuccessful in her claim of negligence as it was decided that there was sufficiently proximate relationship between the claimant and the defendant
A Duty care evaluation paragraph - neighbour princple
A duty of care is also tested using the neighbour princple this was established in the case of Donghue v stevenson where Mrs Donoghue and her friend went to a cafe and brought her a ginger beer, After drinking some she poured out the rest and found a dead snail , she suffered mental and physical anguish she could not sue on the basis on contract law, but she sued on negligence. The use of the neighbour princple is outdated this is because it was first established in 1932 but it does not account for the changes in society however the neighbour princple doesnot required additional parts like the caparo this allows the law to be easily applied
A duty of care evaluation paragraph - The first element of the caparo test- was the damage or harm reasonably foreseeable
The first element of the caparo test is was the damage or harm reasonable foreseeable this highlight how the damage or harm could have been prevented this can be seen in the case of Kenth v Griffith where it was reasonably foresseable that the claimant asthma attack would get worse. The ideas of the events of being reasonably foreseeable is very vague and subjective this is because it ignores factors such as intervening acts or unpredictable natural disatrs such as a storm can not be foreseen however it allows it allows the defendant to be held liable as something could have been done in order to prevent the end result
Duty of care paragraph - The third element of the caparo test is it fair,just and reasonable to impose a duty of care
This is the third element of the caparo test this establishes is it fair just and reasonable to impose a duty on the defendant this is good as it provides the defendant a fair opporunity as both sides are examined however it can lead to unfair decisions this is because it can be viewed as subjective as judges can have a different view on what is fair ,just and reasonable
Breach of Duty - standard of a reasonable person
A breach of duty is normally tested against the standard of a reasonable person. This is an objective test.
However, some of the defendant’s characteristics can be considered which allows the law to be applied fairly to the particular defendant. The standard of care expected of the defendant will be higher or lower in a range of instances, including if the defendant is a professional (the Bolam test applies), a learner (Nettleship v Weston), a child/young person (Mullins v Richards) this is fair it allows the characteristics of the defendant to be considered allows the law to be applied fairly to the defendant and to allow a fairer opporunity as seen in Latimer V AEC ltd the court decided there was no breach of duty however these variations in the standard of care can sometimes operate harshly on a defendant as what is reasonable is an objective question which could operate unfairly against the defendant nonetheless it can be seen as unfair as it is een a subjective and can be vague this is because it does not allow it is open to intrepretation from judges
Breach of duty - factors when assessing the breach
The courts will consider certain factors when assessing the breach, such as the size of the risk and whether the risks could have been avoided easily or at minimal cost for example.
Precautions may also be examined to determine if defendant’s did all they could to prevent any harm occurring. This may include carrying out risk assessments and offering protective equipment.
In Paris v Stepney Borough Council, the claimant was vulnerable so it was decided that more should have been done to protect his eyesight and this could have been achieved simply by supplying goggles.During the pandemic, employers were required to conduct risk assessments and provide protections such as face shields, gloves and screens. This is fair because it allows all factors to be considered which allows a faire opporunity for both the claimant and the defendant however it could be argued that although certain factors are assesses it still does not allow understanding the complexity of the situation
Breach of duty- public benefit
There will be no liability if a greater risk is taken to avoid potentially worse harm or where there is a benefit to society in taking that risk, for example in emergency situations.
This was examined in the cases of Watt v Hertfordshire CC and Day v High Performance Sports where. there is no libility when a greater risk is taken as the interesst of the public as seen in watt v hertforshire council however it would unfair if the defendant is not held accountable for their action
Breach of Duty- Professionals
A defendant will be judged by what is common practice at the time. This applies particularly to claims of medical negligence or in science where change and development can be rapid.
Also, it is important to take into account knowledge at the time. For example, medical understanding of covid developed rapidly between the first and second waves and so the medical profession would have learnt much more about treatment. In Roe v Minister of Health (1954). Thids ensures that professionals are held aacountable for not following common practice however such precedents could lead to open flood gates as not all risk especially in mecidince are not reasonable foreseeable which could cause the defendant it means it provides easy the defendant’s to avoid liability in negligence as there can be not a development in medcine.
