tort of negligence

Question 1

what is negligence

Answer 1

Negligence is the omission to do something which a reasonable man, guided by the considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do

Question 2

Duty of Care – the neighbour principle

Answer 2

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’

Question 3

who is your neighbour

Answer 3

your neighbour is someone so closely and directly affected by my act that I ought reasonably to have had them in contemplation as being so affected when I am directing my mind to the acts or omissions

Question 4

Donoghue v Stevenson (1932) point of law

Answer 4

No claim in contract as she had not purchased the drink. But a claim in negligence could succeed as the company had a duty of care to its customers who were under Atkin’s explanation “their neighbour”. This had been breached

Question 5

Caparo v Dickman 1990
a negligence claim will only succeed if 3 hurdles can be passed:

Answer 5

Is damage forseeable?
Is there proximity between parties? (closeness – in space, time or relationship)
Is it fair, just and reasonable to impose a duty?

Question 6

Foreseeability objective test

Answer 6

Objective test – would a reasonable person in D’s position foresee that someone in Claimant’s (C’s) position might be injured.

Question 7

Proximity

Answer 7

Bourhill v Young is an example of the proximity requirement
It was foreseeable that someone may suffer shock after seeing the aftermath of an accident but there is no liability where there is not a sufficient relationship between the parties.

Question 8

Reasonableness

Answer 8

Is it fair, just and reasonable to impose a duty? This still allows judges to make ‘policy decisions’. They have to balance the risk of fraudulent claims (esp. nervous shock) and opening the “floodgates”.
Today they have to consider what is best for society as a whole.
DUE TO THE CASE OF Robinson v CCWY (2018) – THIS NO LONGER NEEDS TO BE CONSIDERED WHERE THERE IS WELL ESTABLISHED PRECEDENT e.g Doctors or drivers.

Question 9

Breach of Duty

Answer 9

The standard of care that must be reached is that of the “reasonable man”.
He is expected to do this reasonably competently.
This is an objective standard so the individual’s circumstances are irrelevent.

Question 10

(Risk) Factors that affect the Reasonable man standard

Answer 10

Special characteristics of the defendant?
Special characteristics of the claimant
Size of the risk
Have all practical precautions been taken?
What are the benefits of taking the risk?

Question 11

Special characteristics of the defendant

Answer 11

Meant to be reasonably competent at the task they are doing.

Question 12

Size of the risk

Answer 12

The reasonable man takes more care when there is greater risk but does not take precautions against highly unlikely events.

Question 13

have all practical precautions been taken

Answer 13

Consider Bolton v Stone and Haley v London Electricity Board
Reasonable precautions do not always prevent injury.

Question 14

What are the benefits of taking the risk?

Answer 14

Sometimes referred to as public utility – the idea that a lower standard will be required if reacting to an emergency

Question 15

Damage (aka causation)

Answer 15

damage is not the same as damages
2 parts:
Causation in fact; and
Remoteness
Both must be proved for a claim in negligence to succeed.

Question 16

Causation in fact (but for)

Answer 16

Barnett v Chelsea and Kensington Hospital (1968)

Point of law: If the prohibited consequence would still have occurred even without D’s negligence the but for test will not be met.

Question 17

Multiple causes (causation)

Answer 17

Fairchild v Glenhaven Funeral Services (2002)
Point of law – where there are multiple possible causes C must prove that Ds breach caused the harm or made a material contribution.

Question 18

Novus actus Interveniens

Answer 18

Corr v IBC Vehicles (2006)

Legal point: question was not if the particular outcome was foreseeable but whether the type of harm was foreseeable. If it was whether the eventual harm was, on the grounds of policy or fact, too remote. Suicide did not necessarily break the chain of causation and as there was no other cause of the depression that drove Mr Corr to suicide, there was not break in the chain of causation.

Question 19

Remoteness of damage – reasonably foreseeable test

Answer 19

The Wagon Mound (1961)
●Type of damage must be reasonably foreseeable.
●N.B.Once damage is of a kind that is foreseeable the defendant is liable for the full extent of the damage no matter whether the extent of the damage is foreseeable.

Question 20

Robinson (duty of care)

Answer 20

…. we must first establish a duty of care. this was founded by the novel cases using the test in Caparo v Dickman however today Robinson tells us that this can be found by analogy to existing cases where the laws has already established a duty. here it is well established that there is a duty of care between…

Question 21

Caparo test

Answer 21

Firstly, duty of care is established using the three-part Caparo Test, which originated from the case of Caparo v Dickman 1990. In his judgement, Lord Bridge explained the parts to the Caparo test: foreseeability of damage, proximity between the defendant and the claimant and that it is fair, just and reasonable to impose a duty of care in such a situation.