Week 2- Negligence number one and breach of the duty to take reasonable care Flashcards Preview

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Flashcards in Week 2- Negligence number one and breach of the duty to take reasonable care Deck (21)
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Donoghue and stevenson 1932 basic facts and principle established?
What can constitute a neighbour, and what is the duty of care with regards to your neighbours?

Facts- The claimant appealed against her dismissal for a claim of negligence against the defendant, a drinks manufacturer who had bottled ginger beer containing a decomposing snail. The claimant brought the claim after drinking from the opaque bottle containing the remnants of the snail, preventing the decomposing snail from being spotted prior to Donoghue consuming it.

Significance- The appeal was allowed and the appellant won the case; Not every act or omission from which damage arises could be an actionable case of negligence, but “you must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour.”
-Who could constitute a neighbour was a question which had to be contended in the case; The answer appeared to be anyone who you were so close to as to be affected by your acts and that you have contemplated or ought reasonably to have contemplated as being directly affected by your act or omission. This duty of care therefore arose when an act or omission could result in damage to a neighbour if this duty of care was breached.
-Proximity of a neighbour is not restrained to physical proximity and extended to those cases where there were relationships between parties, where the act or omission would directly affect the other party and cause damage.eg in a manufacturer-consumer relationship.
-Finally, the duty could arise independent of any contract, as it had done in this case; there was a duty owed by the drinks manufacturer to the customer in the sense that a breach of this duty could cause injury to the customer if reasonable care was not taken, and this constituted a case of negligence. It was or should have been in reasonable contemplation that the drinks manufacturer's failure to provide a satisfactory drink would result in a risk of injury to the plaintiff.


What are the 4 basic criteria for negligence?

1) The defendant owed the claimant a duty of care
2) That duty has been breached
3) The defendants breach of duty has caused the claimant to suffer loss or damage of a relevant sort
4) That damage is caused in law by the defendant’s negligence/ is not too remote/ is within the scope of the duty- this could be expressed as a foreseeability test, in that the breach of duty could reasonably be foreseen to give rise to this damage


What standards are D judged against? How can this be problematic?

-The defendant must be judged by the standards of the ‘reasonable person’, but as a result of the objective test which is deployed, any motive under which the defendant acts is irrelevant. Intended actions render D just as culpable for negligence as inadvertent carelessness.

-The objective standard used will not take into account the shortcomings of the defendant in most cases; exceptions do apply.


Facts and significance of Nettleship v Weston 1971 regarding the objective standard?
What was LJ Salmon's dissent?

Facts- the defendant was a learner driver, who was in joint control of the car with the claimant, a family friend. D froze at the wheel, mounted a pavement and hit a lamppost, causing the defendant to suffer damages. The court of appeal said that D’s actions fell below the expected standards of care of every driver, but that the claimant’s joint control of the car was no more than a mitigating factor in the value of the damages payable.
-The defendant was convicted of driving without due care and attention, and her learner status was no defence.

Significance- The standard of care is to be judged objectively and is indiscriminate of age or experience as in the case of this learner driver. However, LJ Salmon dissented on this point, suggesting that the learner driver did not owe the same level of care as a driver who had passed a driving test, and that there should be some variation in this case.
-It is no defence to the damage caused, whether to the lamppost or to the driving instructor, that the learner driver is only a learner and “doing the best that she can”.
-It is driver related regulations which seems to impose, or at least facilitate, this high standard of care expected of drivers to other drivers and road users. The fact that she was convicted under the criminal law for driving without due care and attention appears to reinforce the argument that she should also accept the risk under the civil law (as being judged as though she had passed her driving test), and whilst not ‘morally at fault’ on account of her lack of experience (Lord Denning), the risk seems to fall on her that she will be liable when failing to discharge her driver duties and the standard of care expected for her passenger and other road users.
-Lord Denning also suggests that it would be confusing for the driver to owe different levels of care to different passengers and road users, depending on their knowledge of D as a learner and therefore lower skill level.


What are the benefits of applying an objective standard of care, such as in Nettleship v Weston?

- Hard to investigate different attributes of different defendants- pragmatic to apply objective standard.
-Different passengers would have different claims if they had different knowledge of the defendant’s experience; reduces uncertainty over the expected standard of care from the defendant and whether a duty of care has been breached with reference to the anticipated standard of care from the plaintiff.


Dunnage v Randall & UK insurance 2016 facts and significance regarding the objective standard of care?

Facts- The claimants tried to stop a visitor to his house from setting fire to himself with petrol; the visitor died as a consequence whilst the claimant was badly burnt from the fire. The claimant brought an action of negligence against the visitor, in order to claim damages from the household policy of his insurance for ‘accidental personal injury’. The insurance policy excluded liability for ‘wilful or malicious’ actions on the part of D. Therefore, had D breached his duty of care and been negligent, notwithstanding his schizophrenia, and if so, was the liability excluded from the insurance policy on account of being ‘wilful and malicious’, whilst carrying out his suicide which injured the plaintiff.

Significance- The CA held in favour of the claimant, expressing and reinforcing the objective standard inherent to the duty of reasonable care on behalf of the defendant; capacity and mental illness were not to be considered. Only in the case of children might a different standard of care be expected.
-In avoiding any disparity between the standards of care owed, it prevents the introduction of confusing and possibly conflicting medical advice as to what standard of care should be expected of that particular defendant, on account of the extent and severity of their mental illness.
-The second question asked, as to whether the insurers should pay out on account of Ds acts being ‘accidental’ was also answered in favour of the claimant, in that D has clearly lost control to make choice rather than acting with malice, so the insurers exclusionary clause did not apply.


What does Bolton v Stone 1951 suggest about foresight and the remoteness of risk elements of negligence?

Facts- during a game of cricket, a batsman hit a six, which flew out of the ground and hit a woman outside her house (the claimant). The club was well-established and had a 3.7m fence around it, and only on 6 occasions prior to this had the ball been hit out of the ground. The claimant argued that the ball was hit so far previously that it showed that there was a risk of injury to someone outside the ground, and therefore was in reasonable contemplation

Significance- the HL held that there was no negligence established, but that the case was not far away from the conduct of the defendant being sufficiently negligent and objectively foreseeable by the reasonable person as posing a risk to an outsider.
-The main question was whether the reasonable person would foresee this risk to another; in this case it was marginally considered to be too remote to constitute unreasonableness and found an action for negligence.


How is a breach of duty of care established with regards to the importance of foresight?

Therefore, to establish a breach of duty of care, the actions or omissions of the defendant must give rise to a reasonably foreseeable risk of harm or damage to the claimant; if the breach of duty does not give rise to a reasonably foreseeable risk of injury, there can be no negligence as the reasonably prudent person also would not expect such injury to the claimant.

-IT IS THE RISK OF HARM which must be foreseen.


Facts and significance of Roe v Minister of Health 1954 regarding foresight?

Facts- The claimants underwent surgery at Chesterfield hospital, which was under the supervision of the minister of health. The injected anaesthetic had been contaminated, as a result of micro-cracks to the glass tubes in which it was stored, which caused the claimants to become paraplegic. It was then found that the most likely cause of the paralysis was an acidic de-scaler which has been allowed to remain in the sterilizing water boiler, causing the said cracks.

Significance- The staff were not held to be negligent applying the standards of the reasonable medical professional and their ability to foresee that the anaesthetic would become contaminated. The cracks in the glass were not detectable by the human eye and storing the anaesthetic in this way was common practice. Therefore, the reasonable person would not foresee this risk, and therefore would not be unreasonable to proceed with the procedure in the way that they did. There was no negligence established on the part of the hospital.


Facts and significance of Goldman v Hargave (Australian case) regarding variations in the expectations of the reasonable man?

Facts= A tree had caught fire on Ds land after being struck by lightning, and rather than putting it out, he allowed it to smoulder out. It eventually intensified due to the weather and spread to neighbouring land.

Significance- D was liable to the claimant for failing to put out the fire, as he was aware of the danger and failed to act reasonably; he foresaw or ought to have foreseen a risk that it would spread to neighbouring property and cause damage.
-With regards to the standard of care and effort expected, the courts concluded that “reasonable” alone did not answer the question; it should accommodate to the resources and abilities of the defendant, and therefore what they can reasonably be expected to do with regards to these resources. The effort may be such to mitigate the risk that D is physically or financially unable to do. Equally it could reasonably be expected that D alerts someone who is capable of putting out the fire if unable to do so himself.
- “One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it. and in many cases, as, for example, in Scrutton L.J.'s hypothetical case of stamping out a fire, or the present case, where the hazard could have been removed with little effort and no expenditure, no problem arises”


How nettleship and Weston differ to Goldman and Hargrave regarding the objective standard of the reasonable man

-Variation from Nettleship v Weston because in G and H it was a natural occurrence, but there were positive steps to be taken, which should be made less burdensome relevant to the resources available to the defendant and their economic situation.
-The expected positive steps taken in Goldman v Hargrave to expel the duty of care would vary depending on the subjective capabilities of the defendant, as it was a natural occurrence. However, in Nettleship and Weston, the defendant was expected to act reasonably and discharge the duty of care owed in the same way as any other road user, because their duty remains consistent and they are the one creating the risk of harm.


Paris v Stepney Borough council 1950 UKHL 3 facts and significance regarding variations in objective standard?

Facts- The plaintiff was employed by the council as a general garage-hand; he had lost sight in on eye, which the council was aware of. The council only provided eye PPE to welders or tool-grinders, which resulted in Paris losing sight in his other eye when a chip of metal flew into his eye. He sued his employers for negligence.

Significance- On appeal it was decided that the council had breached their duty of care towards the claimant, and failure to provide the protective eye wear gave rise to a reasonably foreseeable risk of damage or injury, increasingly so given the claimants pre-existing sight issues. The courts added that the duty owed to the defendant was increased as a result of his eye-sight, and the risk of harm was greater and would be more severe than if it had been inflicted against a normal sighted employer.
-The knowledge that the plaintiff had eye-sight problems meant that the risk was greater and therefore more foreseeable; this does not necessarily vary the objective standard of care, as any reasonable person in this situation would recognised the aggravated risk of harm personal to this particular plaintiff.


How does Children/ playtime dangers vary the objective standard? How is this shown in Mullin v Richards?

Facts- the claimant suffered damage to her eye from a plastic ruler which had broken after a classmate at her school had been play fighting with them. She claimed against the education authority, but this failed, and although she was successful against the student initially, this was reversed by the court of appeal.

Significance- The argument revolved around the foreseeability of the damage; the question had to be asked whether someone 15 years of age, an ordinary, prudent and reasonably 15-year old, could have foreseen that her actions gave rise to a risk of injury. The objective standard was adjusted to that of an ordinary 15-year old, rather than an ordinary adult.
-the reasonable person must be someone of the same “age, intelligence and experience” as per Hutchinson LJ.


What does Blake v Galloway show about variations in the standard of reasonable care in games/ sports?

Facts- the parties were involved in an informal game, whereby they threw twigs and sticks at each other. One of the parties brought a claim for negligence as a result of an eye injury which he suffered from another party.

Significance- all the parties to the game owed the same level of duty to take reasonable care not to cause injury; there was consensual involvement in the game, there was a risk of physical contact, decisions made would be quick and instinctive, and the nature of the game meant that physical harm was not necessarily avoidable (Dyson LJ drawing an analogy to formal sports).
-Only in a game such as this would D be liable if his “conduct amounted to recklessness or a very high degree of carelessness” (Dyson LJ)


How does the standard of care vary with an ordinary skilled person professing to have a special skill?

The standards of care expected will also vary when performing actions which require special skills, for example a professional medical practitioner.
-In the normal context the ordinary person is judged by the reasonable and ordinary person, whilst in a special skilled situation, the ordinary skilled man exercising an activity requiring this special skill.


Facts and significance of Bolam v Friern Hospital management company 1957?

the plaintiff bought a claim against the defendant’s hospital, after P had suffered fractures whilst being a voluntary patient at Ds mental hospital. He claimed that the hospital was negligent during an electro-compulsive therapy procedure for 1)Failing to administer any relaxant drug prior to passing the current through his brain 2)failing to provide some form of manual restraint or control, an alternative to failing to administer the drug 3) Failing to warn him of the risks involved in the procedure. It was not expected nor legally required that these procedures be administered.

Significance- There was no single objective standard which could be ascertained with regard to the high-skilled procedure which the defendant was subjected to. Different doctors would employ a range of different techniques. The doctors were not merely indifferent to the care of their patients.
-The ordinary law of negligence does not reference any special skill, and instead an objective case is ascertained as to whether the breach of a duty of care gave rise to damage or injury, a breach that the reasonable man would not do. A different test has to be deployed for a special skill procedure; in “this case it was a test of the ordinary skilled man exercising and professing to have that special skill, rather than the highest expert skill.” The different ways in which this procedure could be carried out means that the doctor must conform with one of these standards, which equates to a “reasonably competent medical man at the time.”
-The decision went in favour of the defendants, and established the “Bolam” test for medical negligence, in that where expert medical advice is adduced which suggests that another medical body would have acted in the same or similar way, and this can go in favour of a defendant who can argue that he acted with the standard of care expected of the reasonable person.


How has the case of Montgomery changed the Bolam test, as per Lord Kerr and Lord Reed?

-Doctors should therefore take reasonable care in making the patient aware of all possible injuries inherent to the chosen treatment or procedure, in order to expel their duty of care to protect a patient from being exposed to a risk of injury which they would’ve chosen to avoid; a symmetrical duty is owed by the patient to the doctor to decide whether or not to incur this risk, accepting the risk with full knowledge and freedom if they choose to do so to relieve the doctor of liability.
-As a result, the application of the “bolam test” has been “de-bolamized” in order to increase the extent to which patients are made aware of their exposure of medical risks, rather than allowing doctors to exercise discretion in how much information they disclose to their patients, and then rely on other medical opinions to argue that they were acting as a “reasonably competent medical man at the time.”
-Positive duty to inform patients of risk- principle of self-determination with regard to the patient/ autonomy; perhaps this could be viewed as a predecessor to the Bolam test; a legal obligation to inform patients of all material risks and possible alternatives before undertaking any procedures and attempting to discharge that duty with reference to other recognised medical bodies.


Facts of Montgomery v Lanarkshire Health Board 2015/

The claimants son suffered severe injury during birth as a result of his shoulder being unable to pass through the pelvis. The claimant was diabetic, and the shoulder issue was a recognised risk for diabetic mothers. There was a smaller risk that this injury would be grave. The claimant had expressed concern about undergoing a normal vaginal birth, but the doctor had failed to warn her of the risk of injury to her child, as he believed in doing so it would encourage diabetic mothers to undergo a caesarean delivery, which was said not to be in the maternal interest. The claimant said she would have opted for the caesarean if she was aware of the risks of the injury to her child.


Facts and significance of the Wagon Mound 2 with regards to foresight?

Facts- This was an Australian case appealed to the Privy council from the supreme court of NSW. The claimants had two ships at a Sydney harbour, whilst the defendant was the charterer of another ship; the wagon mound. The carelessness of the wagon mounds engineers meant that a large quantity of oil overflowed onto the surface of the water and accumulated around the claimant’s vessels. It caught light and caused damage to the two vessels.

Significance- This action was successful. It was concluded that the ignition of the oil, whilst unlikely, was still foreseeable by the reasonable person, and so a risk could be foreseen. The question was whether it was justifiable to create this risk of spilling oil, because the risk of ignition was so low.
-The oil spillage was held to be negligent; whilst the reasonable person might undertake foreseeable risks, this was not the case here.
-The fact that a risk is so low does not mean it should be ignored. Lord Reid says there must be some valid reason for rejecting the risk eg the cost of precaution being excessively high. In the present case, there was no justification for releasing oil into the harbour, even if the risk of ignition was very low. More care taken by the ships engineer was not so burdensome as to justify the risk taken to allow the oil to overflow in this manner (learned hand equation= B< risk of damage x magnitude of damage would make someone negligent)


What is the learned hand rule and its equation?
What area of negligence does it refer to?

A economic-based reasonable test:
-The learned hand rule appears to place some economic value on the size of the competing risks/ interests. It says that if the probability is P, the injury is L and the burden (cost of precaution or avoidance of the risk) is B, liability depends on whether B is less than L multiplied by P ie whether B < L x P; an equation for reasonableness


Why is the employers liability act (defective equipment) somewhat different to common law negligence?

-The act somewhat introduced some strict liability on employers, who simply cannot discharge their duty of care towards employees by providing equipment just because it is sourced from a third party.
-The duty is non-delegable in a sense, because under this act the third party is not liable, or at least it does not relieve the employer of liability, even where they themselves have not produced the equipment. The case law suggests the the act will be construed widely with regards to 'equipment'.

-“The purpose of the Act was manifestly to saddle the employer with liability for defective plant of every sort with which the employee is compelled to work in the course of his employment and I can see no ground for excluding particular types of chattel merely on the ground of their size or the element upon which they are designed to operate.” (301B, my emphasis)