Negligence

• Duty of Care

  Defendant must have owed the claimant a duty of care.
• Blyth

  failing to do something which the reasonable person would do or doing something the reasonable person would not do.
• Courts establish a duty by looking at previous case law and relevant Acts of parliament. (ROBINSON)
• Breach of Duty

   

  The defendant’s actions must have gone below the standard of care expected from a reasonable person doing the same task (Objective standard).
• Professionals are judged by the standard of the profession as a whole (MONTGOMERY)
• Learners and the inexperienced judged by the standard of the competent person doing that task (NETTLESHIP)
• Children judged by the standard expected of a reasonable person of the same age (ORCHARD v LEE)
• Courts then take into account the risk factors:

   

  • Special characteristics of the claimant that the defendant should have taken into account? (PARIS)

  • The size of risk – the bigger the risk the more it should have been guarded against? (BOLTON)

  • Reasonable precautions – have they been taken? (LATIMER)

  • Is there a public benefit to taking the risk? (WATT)
• Causation & Remoteness


   

  The damage must have been caused by the breach:

  ·       Factual Causation – ‘but for’ test (BARNETT)

  ·       Legal causation – was there a novus actus?

  And does the Egg Shell Skull rule

  ·       The damage must be reasonably foreseeable and not be too remote (WAGON MOUND)
• Two possible defences:

  ·       Contributory negligence (SAYERS) – damages reduced as decided by the judge to reflect the victim’s contribution towards their injury/damage.

  ·       Consent – Volenti (ICI) – precise knowledge of risk, acted out of free choice and voluntarily accepted the risk.  Complete defence.
• Remedies in negligence – damages:


  ·       Special – those up to trial.  Cover pecuniary losses that can be calculated in monetary terms. E.g. loss of earnings.

  • General  - after trial.  Non-pecuniary losses that are not easy to calculate in monetary terms. E.g. pain and suffering and loss of amenity.