Paper 2.7 - Negligence Flashcards
(29 cards)
What is negligence?
Negligence is an action or omission that causes injury or damage to another person or their property. Burden on C, balance of probabilities.
What are the three elements of negligence?
D owes C a duty of care.
D breaches this duty.
Breach causes foreseeable damage / injury (causation).
When testing whether D owes C a duty of care, what are the two tests a judge could do? When are these not necessary and what case decided that?
The Neighbour Test / Principle.
The Caparo Test.
When there is an established duty of care, there is no need for tests. (Robinson)
What is the Neighbour Principle and what case created this?
‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee injury to your neighbour.’
Donoghue vs Stevens
What are the three stages of the Caparo test?
Was damage reasonably foreseeable?
Is there significant proximity between C & d?
Is it fair, just and reasonable to impose a duty of care?
According to Caparo, damage must be reasonably foreseeable. What is the case example of this?
Kent
Ambulance took a very long time to deliver C to hospital during asthma attack for no reason, causing respiratory arrest; hospital were liable to compensation as the damage to C were foreseeable.
What three elements make up proximity under Caparo? What cases?
Time, space or relationship. (Bourhill - no prox, no relation) (McLoughlin - prox, relation)
According to Caparo, the duty of care must be fair, just and reasonable (FJR) to enforce. What is the case example of this?
Robinson
C was injured by police who were chasing after a drug dealer. Supreme Court overruled Hill and decided that it was FJR to enforce a duty of care on police.
Aside from allowing lawsuits against police, what other major legal point did Robinson establish?
Caparo test was not needed when there was already an established duty of care.
C has to show that the duty of care has been breached. What is the standard for this proof? What is the case example?
Objective; eg a reasonable person’s point of view.
Would a reasonable —– have acted in the same way?
Blythe.
What standard of care are professionals held to? What case?
Professionals are held to the standard of other reasonable professionals.
Bolam.
What standard of care are learners held to? What case?
Learners are held to the standard of a reasonable person.
Nettleship
D, a learner driver, injures C with her dangerous driving. She was liable, as learners are held to the standard of fully qualified individuals.
What standard of care are children held to? What case?
Children are held to the standard of a reasonable child at that age.
Mullins
D, a child, snaps a ruler into C’s eye. D was not liable because children are held to the standard of other children.
What are the four risk factors in regards to how a duty of care is breached?
Special characteristics.
Adequate precautions.
Public benefit.
Size of risk.
What is a special characteristics risk factor and what is the case example?
Special characteristics is when a c requires more care due to their condition eg injury, illness.
Paris
C, blind in one eye, sustains damage to his working eye while working due to a lack of protective equipment. Employer should have taken greater care due to his condition and was liable to more damages.
What is an adequate precautions risk factor and what is the case example of this?
The d has put adequate precautions in place to counteract the danger, nullifying their liability.
Latimer
Factory floods with oil and water, making the floor slippery. Owner puts sawdust on the ground to reduce the slip and workers continue. Worker slips and is injured, however there is no breach due to sawdust.
What is a public benefit risk factor and what is the case example for this?
There is great public benefit that makes d’s action or omission worth the risk of injury.
Watt
C, a fire-fighter, is sent to a scene with an unsecured jack on his personal truck as no fire engines were available. The jack falls off and hurts C, however the fire service were not liable due to the urgency of getting to the scene.
What is a size of risk risk factor and what is the case example of this?
The size of risk is already so small, it requires no further reduction to warrant reaching their duty of care.
Bolton
D hits a cricket ball over his club’s fence and hits a lady. The ball only escaped the fence 6 times in the last 30 years. The miniscule size of risk meant D was not liable for injuries.
In negligence, in the event that d is not aware of a risk that causes harm, are they liable? What case decides this?
No.
Roe
Due to lack of scientific knowledge at the time, cleaning liquid seeped into C’s anaesthetic, paralysing him. D was not liable due to lack of knowledge of the risk.
What are the two requirements of the final element of negligence?
Damage must be caused.
Damage must not be too remote.
What is factual causation (CIVIL) and what is the case example for it?
But for d’s actions or omissions, the end result would not have happened.
Barnett
C is poisoned by another man and goes to hospital. Hospital send him home, and he dies later. However, there was nothing the hospital could have done so they were not the factual cause for C’s death.
What is remoteness of damage and what is the case examples for it?
Damage must not be too remote (Wagon Mound) and type of injury must be reasonably foreseeable (Hughes).
What is the thin skull rule and what is the case example of this?
D is still liable for C’s injuries even if their pre-existing condition triggers it.
Smith
C, an employee, is burnt on the lip due to bosses’ negligence, triggering his cancerous condition, later dying. D was liable for his death.
What are three evaluation points for duty of care (element one of neglience)?
Impact of cases (Donoghue, Caparo, Robinson).
Number of duties - as society develops there will be more duties of care.
Proximity - not objective / what is too close? (Bourhill and McLoughlin).
