negligence still use caparo*

• duty of care is to establish a legal relationship between the parties
• to establish a duty of care:

  1. by existing precedent/ statutory obligation (the robinson approach)
  2. applying the caparo test because there's no existing precedent
• robinson approach:

  case: robinson v CC west yorkshire police- established that existing precedent should be looked at first before deciding if a duty of care exists
• examples of duties of care:

  • Manufacturer and consumer- Donoghue v Stevenson
  • Doctor and Patient- Bolam V Barnet Hospital
  • Drivers and other road users (including pedestrians)- Nettleship v Weston/ Road Traffic Act 1988
  • Employer and employee- Paris V Stepney
  • Instructor and learner- Day V High performance sports
  • teacher and student- Simonds v isle of wight councol
  • parent and child
• donoghue v stevenson (1932)- C was bought bottle of ginger beer by friend when she found a snail inside she could not claim as the contract (receipt) was not with her and the manufacturer but her friend and manufacture as her friend had bought the drink, therefore the neighbour principle was created
• caparo test:

  1. was the harm reasonably foreseeable?
  2. Was there sufficient proximity?- closeness of c and d physically and legally
  3. is it fair, just and reasonable to impose a duty?
• Robinson V CC West Yorkshire (2018)- supreme court made it clear that the caparo test should only be applied in novel situations it is not necessary where there is existing precedent.

  police officers knocked over an elderly lady trying to arrest someone else court held they owed a duty of care to her police are not immune from negligence claims
• Caparo test:

  1. was the harm reasonably foreseeable?- It must be foreseeable that D's act or omission could've caused someone harm (objective test)

  Cases: Kent V Griffiths- asthma attack victim, it was forseeable her condition would worsen if the ambulance did not arrive promptly

  
  

  Topp V London Country Bus- left bus unlocked with keys inside while it may be foreseeable for bus to be stolen it was not foreseeable that it would not only be stolen but someone would be run over
• Caparo test:

  2. Was there sufficient proximity? closeness/ legally

  Cases: Bourhill V Young- pregnant woman miscarried after hearing motorcycle accident but she wasn't close enough in time or space nor did she know anyone involved

  McLoughlin V O'Brien- mother arrived in aftermath of accident involving family members was sufficient proximity
• Caparo test:

  3. is it FJR? (policy based decision)

  Cases: Hill V Chief Constable of West Yorkshire Police (1990)- not FJR to impose duty on police for not being able to catch a killer sooner threat of being sued would open floodgates

  Capital & Counties plc V Hampshire CC (1997)- firefighters wouldn't usually be liable for not being able to put out a fire but turning off sprinklers made fire damage worse they made fire worse so FJR
• just because a duty of care is owed to c doesn't mean claim will succeed
• Breach of duty is made up of two parts:

  1. Comparing D's conduct with the standard of care expected from a reasonable person
  2. Considering various risk factors which may raise or lower that standard
• Breach of duty:

  1. the reasonable person test- objective test d will fail test if they fail to act in the way a reasonable person would

  Case: Blyth V Birmingham waterworks- d installed pipes in street near c's house they burst in winter not negligence as it wasn't reasonable to accept such severe frost

  If D acts in the way a reasonable person would have done there is no breach- Glasgow Corporation V Muir- children burned when tea urn was dropped, was reasonable for urn to be carried inside due to the rain reasonable person would not have foreseen this risk
• standard of care:

  1. children- standard of care will be that of a reasonable child of same age

  Case: Mullins V Richards (1998)- "sword fight" with plastic rulers ruler snapped and eyesight was lost was not liable due to reasonable person of same age test
• standard of care:

  2. amateurs- judged against other reasonably skilled amateurs doing the same task

  Case: Wells V Cooper- while doing DIY door handle later came away causing injury, not judged against against professionals but amateurs doing the same task
• Professionals/ experts will be judged against competent professionals also in their field. there must be a substantial professional opinion that would support D's course of action- Bolam V Barnet Hospital (1957)- C was injured during electric shock treatment because doctor had not given a muscle relaxant

  doctors must ensure patients are fully informed of all risks involved with the treatment and any alternatives- Montgomery V Lanarkshire Health Board (2015)-doctor failed risks if mother had a natural birth rather than caesarean
• Establishing duty via precedent and case law


  Robinson v CC West Yorkshire
• Proximity in establishing duty

  Bourhill v Young - miscarriage heard accident didn’t see it, no sufficient proximity
• Floodgates in establishing duty

  Hill v CC West Yorkshire
• Was the harm reasonably foreseeable?

  Kent v Griffiths - delayed ambulance, reasonably foreseeable that condition would worsen
• Breach of duty

  Failure to meet the standard of reasonably competent person carrying out that activity
• Objective test so no allowance for inexperience
• Modifications to the reasonable person test
• Exceptions to the reasonable person test

  • Children - Mullins v Richards
  • Experts - Bolam v Barnet Hospital, Montgomery v Lanarkshire
• Seriousness of harm - Paris v Stepney
• Unknown risks - Roe v Minister of Health (no breach as contamination wasn’t thought possible)
• Factual causation: But for D’s breach of duty would C have suffered damage?
• Examples of factual causation


  • Barnett v Chelsea & Kensington Hospital (doctor’s negligence would have made no difference to victim of arsenic poisoning)
• Intervening events - Knightley v Johns (actions of police officer on scene broke chain)
• Remoteness: Can only claim for types of damage that are reasonably foreseeable
• Examples of remoteness

  • The Wagon Mound (oil damage foreseeable, fire damage not foreseeable)
• Thin skull rule - Smith v Leech Brain (take C as you find them, including vulnerabilities)
• Defences to negligence

  • Contributory negligence
  • Volenti non fit injuria (consent)
• Contributory negligence: Partial defence under Law Reform (Contributory Negligence) Act 1945
• Volenti non fit injuria (consent): Complete defence
• Example of volenti non fit injuria (consent): Morris v Murray (C chose to accept flight with drunk pilot)