evaluation of negligence still use caparo

• main evaluation points focus on the 3rd element of the Caparo test
• judges have identified reasons as justification for imposing a duty and not imposing a duty:

  • policy relating to special group (amateurs, children etc.)
  • "floodgates" argument- hill v cc west yorkshire was this just to let them get away with this? - Capital & counties v hampshire CC (incompetence of fire brigade created fresh source of danger was fair when court imposed liability here)
  • lawyers and judges- Hall v simons (was fair that the court ended immunity on barristers and solicitors), Sirros v Moore (a judge should be free to make decisions without fear of being sued)
• AO1: duty of care

  • Robinson v CC West Yorkshire to prove a duty of care by existing statute e.g. Road Traffic Act 1988 / OLA 1957, existing precedent (existing case) - Donoghue v Stevenson (manufacturer consumer) or Nettleship v Weston (learner driver and passenger) Wilkin Shaw v Fuller (student died on trip was a breach but teacher didn’t cause the damage) Or reason by analogy this scenario is similar enough to e.g. teacher and student as its coach and player or close enough to a doctor-patient relationship
• AO1: breach of duty

  • Objective test - what would the reasonable person do? E.g. reasonable person doesn’t text while driving on their phone as dangerous and legislation against it. Blyth v Birmingham Waterworks. Children (Mullins v Richards), professionals (e.g. Doctors Bolam v Friern Hospital), amateurs, learners held to standard of reasonable __ their age apart from learners held to normal drivers non-learners reasonable person performing the task who isn't a learner etc. and sport level of sport being played (Condon v Basi).
• Risk factors - probability of harm (Bolton v Stone size of risk), social utility (public benefit, the risk of the injury is worth taking because it is useful to society and has value so standard lower - Day v High performance sports get her down as having a medical episode rather than someone climbing up to gradually help her down), precautions (Latimer v AER), special characteristics (Paris v Stepney blind in one eye with no preventative measures likelihood of harm to him was greater as already blind in one eye).
• Evaluation of breach: precautions fair don't have to eliminate risks only do what is reasonably necessary and proportionate to the risk. All risk factors fair looking at every situation on an individual basis such a small chance of it happening in Bolton v Stone it's all about balancing the claimant and defendant each situation is individual not every breach should result in an outcome it's not as straightforward as a reasonable person e.g. day case reasonable climber would not have done what they did but they were not in breach due to the risk factors which was fair.
• Learner not fair, e.g. if it's your first lesson and something happens unfair to be held to standard as someone who has passed their test when you don't know what you’re doing as you are learning to do it. But can be argued to be fair not the victim's fault if learner crashes into them/injures them