negligence in tort

Question 1

Definition of Negligence

Answer 1

in Blythe v Birmingham Waterworks- “Failing to do something which the reasonable person would do or do something the reasonable person would not do”

Question 2

The 3 things that make someone liable for negligence

Answer 2

2) they breached this duty
3) the breach causes reasonable foreseeable injury or damage

Question 3

What is the duty of care

Answer 3

A legal relationship between the claimant and the defendant

Question 4

The neighbour principle

Answer 4

Used in negligence cases to determine whether a duty of care was owed to the person injured. A person must take reasonable care to avoid acts and omissions that can reasonably be foreseen as likely to injure their ‘neighbours’; that is, the people who would be closely and directly affected by their acts or omissions. Seen in donoghue v Stevenson.

Question 5

Paris v Stepney Borough Council (1951)

Answer 5

the claimant was known to be blind in one eye. He was given work to do by his employers which risked a injury to an eye but was not given any protective gear, during the work his good eye was damaged and he went blind. Employers were liable.

Question 6

caparo 3 stage test

Answer 6

• was damage reasonably foreseeable
  ● was there sufficient proximity between Claimant and defendant
  ● is it fair to impose a duty of care

Question 7

Caparo v Dickman

Answer 7

claimant did research and saw defendants business was making profit when they bought the claimants business they made a loss. held the company accounts was not for the claimant but for personal use

Question 8

proximity of relationship (Bourhill v Young (1943))

Answer 8

Psychiatric harm must be reasonably foreseeable to a person of normal fortitude
Otherwise, no recovery Brice v Brown [1984]

Question 9

Hill v. York County Sheriff’s Department

Answer 9

Yorkshire ripper case where policed didn’t act to save last victim but claimant alleged that police owed her a duty of care. it was held relationship between victim and police was not sufficiently close.

Question 10

Breach of Duty (reasonable man)

Answer 10

for a breach there needs ro show thag a reasonable person with the same characteristics would or wouldn’t act the same in the scenario.

Question 11

reasonable learner (nettleship v weston)

Answer 11

D arranged to drive with his neighbour but then crashed it was held that D would be liable and be held to the same standard as a professional.

Question 12

reasonable child (mullin v richards)

Answer 12

2 children aged 15 were playing fighting with rulers when one of them broke flying into one of their eye causing blindness. held thag a child that young couldn’t have breached a duty of care.

Question 13

reasonable professional (ballam v freirn

Answer 13

D went for electric shock therapy but wasn’t given anesthetic or told the risks. it was held thay there were 2 opinions on how the procedure should be run and D chose one of the options so wans t liable.

Question 14

special characteristics (Paris v Stepney council)

Answer 14

claimant was known to have one functioning eye when he was chosen to do a job the employer didn’t give him goggles causing a metal shard to enter his eye blinding him. this caused the employer to be liable.

Question 15

Size of risk - Bolton v Stone

Answer 15

claimant got hit by cricket ball on the street and tried to claim but court held thay since the ball had gone over the fence 6 times in 30 years and there was a 17 foot fence there were procedures in place so it was unlikely and so there was no duty of care

Question 16

precautions

Answer 16

balance of risks depends on adequate precautions.

Question 17

Latimer v AEC

Answer 17

the workshop got flooded and mixed with oil . the employers covered the floors in saw dust and allowed workers to reenter. the workers came in and the claimant fell and got injured. held thay there was reasonable precautions in place.

Question 18

unknown risk . rae v ministry of health

Answer 18

anaesthetic was kept near cleaning chemicals . the anaesthetic was in an unnoticeable damaged container which caused it to become poisonous as it was mixed with the chemicals. the anaesthetic paralysed the vcitim when it was administered

Question 19

Damage factual causation

Answer 19

Barnet v Chelsea and Kensington Hospital Management Committee-But for test, arsenic was already in her husband’s system.

Question 20

Knightly V Johns (Facts)

Answer 20

John’s drove negelgantly and crashed. an officer came down to scope out the scenery. he was told by his superior officer to go check on the traffic so when he went on his scooter he believed the rode was shit which it wasn’t causing him to get into an accident. the superior officers orders were a novus actus intervenes.

Question 21

Remotness of damage - wagon mound

Answer 21

Defendants shop leaked oil and 2 days later flowrd into a wharf where it ignited during a welding. held thay oil spills are reasonably foreseeable but fire was not reasonably foreseeable. and damage was too remote.

Question 22

take victims as you find them (thin skull rule)
smith v leech brain

Answer 22

c was burnt jnnthe lip which awoken dormant cancer cells. held the burn was reasonably foreseeable so C was liable because of thin skull rule.

Question 23

what is the structure for the evaluation of negligence?

Answer 23

Introduction
8 marks of explain
12 marks of evaluation
Conclusion

Question 24

what must the introduction be?

Answer 24

what must the introduction be?

Introduction should link to the question and set out some ideas to discuss

Question 25

what must be in the explain the law part?

Answer 25

Explain duty, breach and damage with case law

Question 26

what content must be included when explaining the law?

Answer 26

Duty: - Donoghue v Stevenson - Robinson - Caparo v Dickman Breach: - Blyth v BW - Nettleship v Weston - Bolam - Mullin v Richards - 2 risk factor cases Causation & Damage - Barnett - Reeves or Wilkin-Shaw - Wagon Mound - Hughes - Bradford or Smith

Question 27

how to structure the evaluation section of the 20 marker?

Answer 27

You need 4 paragraphs in the correct structure Paragraph structure: Issue Positive/negative point Counter point Link back to the question

Question 28

what is point regarding duty of care?

Answer 28

Robinson shows that duty of care should usually be decided based on previous precedents, unless it's a novel case.

Question 29

what is the positive point from robbinson regarding duty of care?

Answer 29

On the one hand, this creates a lot of certainty because similar cases will be decided in similar ways, which creates fairness and makes it easy for lawyers and citizens to work out if a duty is owed.

Question 30

what is the negative point from robbinson regarding duty of care?

Answer 30

However, one can argue that this may ignore the individual facts of these situations and create rigidity, meaning that injustice may result to claimants and/or defendants.

Question 31

what is thee main point from the evaluation of breach?

Answer 31

Nettleship v Weston shows inexperience does not lower the standard of care.

Question 32

what is the positive evaluation of breach?

Answer 32

This rule creates certainty because all defendants will be held to the same objective standard, which also ensures high standards are maintained because inexperience will not be an excuse.

Question 33

what are the two negative evaluations of breach?

Answer 33

However this can be very unfair because it expects D to meet a standard that is higher than common sense would dictate (normally we would expect less from someone less experienced) However, profession and age can change the standard of care - seemingly because D has experience or lacks life experience respectively. This makes it uncertain about when experience actually is relevant and makes the law harder to understand.

Question 34

What is the main point from the evaluation of damage?

Answer 34

Smith v Leech Brain shows that D is still responsible for the full extent of damage to C, even if C had a weakness D was unaware of (the egg shell skull rule).

Question 35

what is the positive point from the evaluation of breach?

Answer 35

This creates certainty as D can always be sued in these cases and ensures justice for C who will never be blamed for being particularly weak. It also encourages D to take precautions to cover all eventualities, making society safer.

Question 36

what is the negative point from the evaluation of breach?

Answer 36

However, this could be unfair on D because they cannot take precautions against a weakness they do not know about, and conditions such as the cancer in Smith v Leech Brain can be very unforeseeable. This rigid rule may therefore create injustice.

Question 37

what is the main point from fault/not strict liability evaluation?

Answer 37

Negligence is based on fault - i.e. D must have done something wrong (breach) and caused foreseeable damage to be liable. It is not a strict liability tort.

Question 38

what is the positive point from the evaluation of fault/not strict liability evaluation?

Answer 38

This is fair on D as they would not deserve to be sued if the situation was essentially an unforeseeable accident. This also rewards D for taking good precautions, which incentivises high standards of care.

Question 39

what is the negative point from the evaluation of fault/not strict liability evaluation?

Answer 39

However, this means that C is not guaranteed compensation if they are affected by D's conduct, which may be unfair on C if they are also not to blame for the incident. It may also only encourage D to only take 'enough' precautions to escape liability, rather than all possible ones in a stricter system, risking safety.