Liability in negligence

• Negligence can apply in a wide variety of situations where a person is injured or their property is damaged – as a result of an accident. E.g - a car crash will result in a claim for the vehicle damage and any injury to drivers and passengers.
• Blyth v Birmingham Waterworks 1856 defined negligence - “ failing to do something which a reasonable person would do or doing something that the reasonable person would not do.”
• The claimant must prove that the defendant was at fault and therefore to blame for his injury or damage - the burden of proving the fault is on the claimant.
• The level of fault is on the balance of probabilities – meaning it is more likely than not that the defendant’s fault caused the injury or damage.
• For negligence three elements must exist:

  1 - the defendant must owe the claimant a duty of care

  2- they must breach this duty of care

  3- the breach causes reasonably foreseeable injury or damage
• Duty of care:

  A duty of care in negligence means there must be a legal relationship between the parties.
• Duty of care:

  The concept of a duty of care has developed through case law –Donoghue v Stevenson 1932 established (for the first time) the broad principles of owing a duty of care and general liability in negligence - known as the neighbour principle
• Duty of care:

  The neighbour principle was replaced by a three-part test in the case of Caparo v Dickman 1990 known as the Caparo test:

  1 – was the damage or harm reasonably foreseeable

  2- is there a sufficiently proximate (close) relationship between the claimant and the defendant

  3- Is it fair, just and reasonable to impose a duty?
• Duty of care - Caparo test (1st element):

  Damage or reasonably foreseeable harm - this depends on the facts of the case. Kent v Griffiths 2000 – ambulance failed to arrive in a reasonable time, the claimant suffered respiratory arrest. The court held that is was “reasonably foreseeable” that the asthma attack, if not treated promptly would result in further harm.
• Duty of care - Caparo test (2nd element):

  Proximity of relationship – Even if the harm is reasonably foreseeable, a duty of care will only be held to exist if the relationship between the claimant and the defendant is sufficiently close or proximate.
• Duty of care - Caparo test (2nd element - case):

  Bournhill v Young 1943 – a pregnant woman heard an accident involving a motor cyclist who was killed, she later approached the scene of the accident – saw blood, the shock caused her to go into labour, she gave birth to a stillborn baby. She tried to sue the family of the dead motor cyclist but the court held that she was not proximate (close) enough to him so that he owed her a duty of care (he could not be expected to anticipate her harm).
• Duty of care - Caparo test (2nd element - case):

  A different decision from Bournhill 1943 was reached in McLoughlin v O’Brien 1982 – the claimant’s husband and children were involved in a serious road accident, she was at home, when she arrived at the hospital she saw them before they had been treated and as a result suffered severe depression - she claimed against the defendant and was successful as she was classed as proximate as she came to the hospital in the immediate aftermath of the accident.
• Duty of care - Caparo test (3rd element):

  Fair, just and reasonable to impose a duty – this allows the courts to decide, even if the harm was foreseeable and the parties were sufficiently close there is still not duty of care. Courts are reluctant to find that it is “fair, just and reasonable” to impose a duty on a public body such as the police. Hill 1990 - it was held that allowing the police to be sued could result in defensive policing and them diverting their resources away from prevention and detection of crime, leading to lower standards of policing.