Negligence including General Defences Flashcards
(42 cards)
What 3 things must be proved in a negligence case?
D owed C a duty of care
D breached that duty of care
D’s breach caused the damage to C which was not too remote
What does Robinson v CCoWY say?
If a duty has been owed in a similar situation before, a duty should also be applied in this case.
When do you need to use Caparo v Dickman?
If a scenario is a novel or new situation.
What is the Caparo test?
-Would the reasonable person foresee a risk of damage from what D has done?
-Is there a proximity/ closeness (closeness of time and space or closeness through a relationship of knowledge or dependency) between D and C?
-Is it fair, just and reasonable to impose a duty on D?
What does Blyth v Birmingham Waterworks define a breach of duty as?
D has fallen below the standard of care expected of a reasonable person doing the same activity.
What doesn’t lower the standard of care expected and which case shows this?
Inexperience. In Nettleship v Weston, D, a learner driver, was compared to the average competent driver even though she was a learner driver.
Which case said that profession or expertise raises the standard of care?
Bolam v Friern Barnet HMC. D was compared to the reasonable doctor.
What are the situations in which D would be compared to a professional?
-D actually has the skills/ expertise of a professional.
-D is acting in a way where they would be expected to be a professional (even if they don’t actually have the expertise).
What was the case where D was not compared to a professional because they weren’t a professional and weren’t expected to be one?
Wells v Cooper. D was compared to a reasonable person doing DIY.
Which case said that age lowers the standard of care and what is the standard lowered to?
Mullin v Richards. D will be compared to reasonable children of the same age.
What are the 4 risk factors that help determine if D has reached the standard of care expected of them?
-Size of risk
-Seriousness of potential harm
-Practicability of precautions
-Benefits of taking a risk
How does size of risk affect the likelihood that D breached their duty of care?
It looks at how likely is harm to happen. If the risk of harm is small, the reasonable person would take less precautions and so it is less likely D has breached the duty of care. If the risk of harm is high, the reasonable person would take more precautions and so it is more likely D has breached the duty of care.
Which cases would you use for size of risk?
-Bolton v Stone (1951)- The reasonable man will take less precautions against a small risk of harm.
-Miller v Jackson (1977)- The reasonable man will take more precautions if the risk of harm happening is high.
How does seriousness of potential harm affect the likelihood that D breached their duty of care?
It looks at how bad harm could be if it happened. The reasonable person would take more precautions if the potential harm to C could be serious and so D is more likely to have breached their duty of care.
Which case would you use for seriousness of potential harm?
Paris v SBC (1951)- The reasonable man would take more care when the potential harm to C could be serious.
How does practicability of precautions affect the likelihood that D breached their duty of care?
It looks at how cheap, easy and quick it was to take precautions to reduce the risk of harm. If it would have been cheap, easy and quick then D is more likely to be in breach as the reasonable person would have taken them.
Which cases would you use for practicability of precautions?
-Paris v SBC (1951)- It would have been cheap,easy and practical for D to use Precautions.
-Haley v LEB (1965)- The precaution has to be practical
-Latimer v AEC (1952)- The reasonable man would take precautions that are proportionate to size of risk and seriousness of potential harm.
How does potential benefits of taking a risk affect the likelihood that D breached their duty of care?
If the benefit outweighs the risk of harm to the claimant there is no breach. The reasonable person would take the risk if the potential benefit outweighs the risk.
Which case would you use for potential benefits of taking a risk?
Watt v HCC (1954)- The reasonable man will take a risk if the potential benefit to be gained outweighs the risk.
What 2 things must be proven for damage?
- D’s breach caused the damage to C
- The damage was not too remote
Which case would you use for factual causation (but for test)?
Barnett v Chelsea & Kensington Hospital Management Committee (1969)
‘The damage would not have occurred but for the D’s breach of duty’
Which case would you use for legal causation for V’s own actions?
Act of Victim (Reeves v MPC (1999))
Which case would you use for legal causation for actions of a third party?
Act of third party (Wilkin-Shaw v Fuller (2013))
Which case says that the type of damage must be reasonably foreseeable when deciding if the damage was too remote?
The type of damage must be foreseeable (The Wagon Mound (1961))