Tort of Negligence

Question 1

In which case did the modern law of negligence originate from?

Give brief facts.

Answer 1

Donoghue v Stevenson (1932)

Facts: Slug in ginger beer. C sued manufacturer as no claim allowed to shopkeeper because drink was bought for C therefore no contract.

Question 2

define the term ‘negligence’

Answer 2

an act or a failure to act which causes injury to another person or their property.

Question 3

Donoghue v Stevenson (1932)

Answer 3

Principle: origin of the modern law on negligence and duty of care.

Facts: slug in ginger beer. C claimed against manufacturer rather than shop.

Question 4

What is the neighbour principle and which case did it originate from?

Who established the principle?

Answer 4

Anyone you ought to have in mind whom may be injured by your act or omission.

Donoghue v Stevenson (1932)

Lord Atkin

Question 5

Which principle did Lord Atkin establish regarding liability in negligence?

Answer 5

The neighbour principle

Question 6

What was the ‘neighbour principle’ replaced by?

Answer 6

The three part test from Caparo v Dickman (1990)

Question 7

What are the three parts to found from Caparo v Dickman (1990)?

Answer 7

1) damage or harm reasonably foreseeable
2) proximity of relationship
3) fair, just and reasonable to impose a duty

Question 8

What case established the three part test?

Give brief facts.

Answer 8

Caparo v Dickman (1990)

Facts: C company bought another company based on accounts provided for another purpose. No claim allowed.

Question 9

What did the case of Caparo v Dickman (1990) establish?

Answer 9

The three part test that replaced the neighbour principle.

1) damage or harm reasonably foreseeable
2) proximity of relationship
3) fair, just and reasonable to impose a duty

Question 10

what 3 elements does negligence require?

Answer 10

1. Duty of care
2. Breach of duty
3. Damage caused

Question 11

what is the ‘duty of care’?

Answer 11

refers to the legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that needs to be established to proceed with an action in negligence.

Question 12

explain the foreseeability part of duty of care that is set out in the Caparo test.

Answer 12

this is where a reasonable person could foresee that damage/injury could be caused to another by his actions or omissions.

Question 13

what case defined negligence?

Answer 13

Blyth V Birmingham Waterworks Co (1856)

Question 14

what is the key case for foreseeability?

Answer 14

Kent v Griffiths (2000)

ambulance service owed a duty of care as it was reasonably foreseeable that person in Cs position would be further injured if ambulance had failed to arrive or took too long.

Question 15

explain proximity within duty of care.

Answer 15

even if harm is reasonably foreseeable, a duty of care will only exist if there is a relationship between C and D - close or proximate by time, space, relationship.

Question 16

what are the 2 key cases for proximity?

Answer 16

Bourhill v Young (1943)
duty of care wasn’t owed as relationship wasn’t proximate (pregnant woman gave birth to stillborn baby after witnessing an accident, sued relatives, would open floodgates)

McLoughlin v O’Brien (1983)
duty of care was owed as relationship and time was proximate.

Question 17

explain fair, just and reasonable in duty of care.

Answer 17

is it fair, just and reasonable to impose a duty of care onto D?

Question 18

what is the key case for fair, just and reasonable?

Answer 18

Hill v Chief Constable of West Yorkshire (1990)

not fair, just or reasonable for police to owe a duty to member of public not known to them.
if it was ruled to be fair to impose duty of care, it could lead to policing being taken out in a defensive way.

Question 19

what is breach of duty?

Answer 19

once it has been shown a duty of care is owed, the C has to prove that the duty of care has been broken.

Question 20

what is the standard for breach of duty?

Answer 20

the standard is objective, that of the ‘reasonable person’

Question 21

what is the ‘reasonable person’ in duty of care?

Answer 21

the ordinary person performing the task competently.

Question 22

what are the 6 factors of breach of duty?

Answer 22

characteristics of D
characteristics of C 
size of risk
appropriate precautions
unforeseeable risk
public benefit

Question 23

explain ‘characteristics of D’ within breach of duty

Answer 23

The standard is objective; that of a reasonable person (an ordinary person performing the task
competently). This will vary depending on who the defendant is, court has to consider any special
characteristics e.g. child, professional.
Learner: judged at standard of a competent more experienced person
Nettleship v Weston (1971)
Professional: judged by standard of profession as a whole
Bolam v Friern Barnet Hospital Management Committee (1957)
Children and young people: the standard is that of a reasonable person of the defendant’s age at

the time of accident.
Mullin v Richards (1998)

Question 24

explain ‘characteristics of C’ within breach of duty.

Answer 24

Has the claimant any special characteristics which should be taken account of?

Paris v Stepney Borough Council (1951) court ruled there was a breach her, the defendant owed a
higher standard of care as they knew that the consequence of an eye injury would be more severe for
this particular employee as he was already blind in one eye.

Question 25

explain 'size of risk' within breach of duty

Answer 25

Where there is a small risk, the defendant will not have to take as great a precaution. Bolton v Stone (1951) Cricket ball hit a lady passer-by in the street outside a cricket ground. The risk was so low that the court ruled that there was no breach. Haley v London Electricity (1965) if there is a higher risk there should be a higher precaution. Court ruled there was a breach here as the risk was known so a reasonable person would have taken precautions (blind man fell into hole as no barriers were put around it)

Question 26

explain 'appropriate precautions' within breach of duty

Answer 26

The courts will balance the risk of harm against the cost and effort of preventing it. Latimer v AEC Ltd (1953) the only way to prevent injury was to shut down the factory which is unreasonable. There was no breach as sufficient steps were taken at the time to prevent injury.

Question 27

explain 'unforeseeable risk' within breach of duty

Answer 27

If the risk is unknown, there can be no breach. The reasonable man is not expected to know and can't protect against risk of harm that are not yet known scientifically. Roe v minister of health (1954) courts decided there was no breach and claimant could not claim compensation. (Cracks in a spinal anaesthetic glass were so small it wasn't foreseeable but it was contaminated resulting in claimant paralyzed)

Question 28

explain 'public benefit' within breach of duty

Answer 28

In an emergency, greater risk can be taken and lower standard of care accepted. Watt v Hertfordshire county council (1954) court decided that fire service had not breached its duty of care to the claimant, emergency situation and the utility of saving a life outweighed the need to take precautions. It also open floodgate to similar cases.

Question 29

explain damage

Answer 29

C is to prove that damage suffered was caused by breach of duty and loss was not too remote and that there were no intervening acts breaking chain of events.

Question 30

what 2 things need to be proven under damages if there is to be liability for claim in negligence?

Answer 30

1. Factual causation (you Must start with this) | 2. Legal causation

Question 31

explain factual causation in damage

Answer 31

If factual causation cannot be proved then there is no need to consider legal causation. It is determined by the 'but for test' (but for defendants act or omission, claimant would not have suffered the loss or harm.

Question 32

what is the case for factual causation?

Answer 32

Barnett v Chelsea and Kensington hospital management committee (1968) The claim failed; the death was not caused by the doctor's breach of duty as the arsenic was already in his system. (3 night watchmen went to hospital complaining of sickness, doctor didn't examine them and sent them away, later one died and his widow sued the doctor).

Question 33

explain legal causation

Answer 33

Damage must not be too remote/distant from negligence of the defendant.

Question 34

what is the case for legal causation that demonstrates remoteness of damage?

Answer 34

``` Wagon mound (1961) damage was too remote from the original act negligent act of spilling the oil. Damage or injury must be reasonably foreseeable. ```

Question 35

what is the case for legal causation regarding foreseeability?

Answer 35

The defendant will be liable if the type of injury was foreseeable even though the precise way it happened wasn't. Hughes v Lord Advocate (1963) type of injury suffered was foreseeable even though the explosion was not. (manhole was left unattended, an 8-year-old boy and friend climbed in, as they climbed out they knocked a paraffin lamp into the hole which caused an explosion and badly burnt the claimant.

Question 36

what is the eggshell rule within legal causation?

Answer 36

This rule means that the defendant must take his or her victim as they find them (a pre-existing condition). Smith v Leech Brain and Co. (1962) defendant was liable for the mans death. Molten metal triggered a pre-cancerous condition.

Question 37

what does Res ipsa loquitur mean in negligence?

Answer 37

the thing speaks for itself. the burden of proof shifts from the C to the D.

Question 38

what 3 things must the C show for Res ipsa loquitur?

Answer 38

1. the D was in control of the situation which caused the injury 2. the accident would not have happened unless someone was negligent 3. there is no other explanation for the injury. if C can show all 3 then burden of proof shifts to D to prove they weren't negligent

Question 39

what is the case example for Res ipsa loquitur?

Answer 39

Scott v London and St Katherine docks (1865)

Question 40

what are the 2 main defenses D can use?

Answer 40

1. contributory negligence | 2. Volenti Non fit injuria

Question 41

what is contributory negligence as a defense?

Answer 41

the law reform Act 1945 provides that any damages awarded to the C can be reduced according to the extent or level which the C had contributed to his or her own harm. this is a partial defense and only result in reduced damages.

Question 42

what is the key case for contributory negligence as a part defense?

Answer 42

Sayers v Harlow UDC (1957) damages reduced if the C has partly caused her own injuries.

Question 43

what is Volenti Non fit injuria (consent) as a defense?

Answer 43

C voluntarily agrees to undertake legal risk of harm at his own expense. this is a complete defense to action.

Question 44

what is an example for Volenti Non fit injuria?

Answer 44

Smith v Baker (1891)

Question 45

what does damages mean?

Answer 45

compensation awarded by the court for the injuries he or she have suffered.

Question 46

what is pecuniary loss?

Answer 46

loss that can easily be calculated in money terms e.g. cost of hiring a car while C's car is being repaired

Question 47

what is non-pecuniary loss?

Answer 47

loss that is not wholly money based, can include pain and suffering as a result of accident, loss of amenity or a change in lifestyle e.g. not being able to play sports.

Question 48

what are special damages?

Answer 48

amount which can be calculated specifically up to date of trial or settlement. for pecuniary loss

Question 49

what are general damages?

Answer 49

non pecuniary losses and are looking forwards from trial or settlement date. include medical evidence of the effect of the accident on C and how long suffering or injuries will heal

Question 50

what is a lump sum?

Answer 50

when courts make an award for non pecuniary losses, they can only award a lump sum. C cannot come back to say they exhausted the damages, unfair on those whose conditions may become worse in the future.