The breach of a legal duty to take care which results in damage to the claimant.
An act or failure to act which causes injury to another person or damage to their property.
Elements of negligence: What must be proved?
Duty of care
Breach of duty
Damage caused
The neighbour principle - Donoghue V Stevenson
A person is owed a duty of care by the defendant. It is not the person living next door; it is anyone you ought bear in mind who could be injured by your act or omission.
Which SC case set a 3 part test that remained the law until 2018?(DoC)
Caparo V Dickman
What did the SC say about Caparo?(DoC)
It does not have to be strictly applied in every case, instead courts should look to existingstatutes and precedents (where there is, courts do not need to consider this test).
Following Robinson, when will Caparo apply now?(DoC)
In novel duty situations - where there is no statutes.
Why did Robinson criticise Caparo's test?(DoC)
Didn't say when a duty of care should be imposed
Misapplied
Inconsistency and uncertainty
What is the effect of the Robinson case?(DoC)
Isn't a single test to assess if a duty of care exists
If novel situation, use Caparo
In ordinary cases, courts follow the precedents
In present cases where question whether a duty of care arises has not previously been decided, apply circumstances of established principles
Caparo 3 part test (DoC)
Was damagereasonablyforeseeable? (Kent V Griffiths)
Is there a sufficientlyproximaterelationship? (Bourhill V Young)
Is it fair, just and reasonable to impose a duty? (Mitchell V Glasgow City Council)
The 'reasonable' man (BoD)
Vaughan V Menlove
The 'man in the street' (Hall V Autobrookslands Racing Club)
Average, not perfect
Stated the courts apply an objective (others) test when deciding if D has breached their duty
This is variable and will depend on the circumstance of the D or situation
The 'reasonable' child (BoD)
Mullin V Richards
Orchard V Lee
Child D's are expected to reach the standard of care reasonably expected of ordinary children of the same age
The 'reasonable' learner (BoD)
No allowance is made for a lack of experience or skill
Nettleship V Weston
The 'reasonable' professional (BoD)
Bolam & Bolitho
Montgomery V Lanarkshire Health Board
Standard of care applied to professionals with a particularskill/experience is that of the reasonable person with the same skill/experience
Factors with may alter the standard of care (BoD)
Court decides whether standard of care should be lowered or raised
Would the reasonable person have taken more or fewer risks in the same situation?
Does the C have any special characteristics? (Paris V Stepney Borough Council)
What was the size of the risk? (Bolton V Stone & Haley V Electricity Board)
Have all adequate precautions been taken? (Latimer V AEC Ltd)
Is there a public benefit to taking the risk? (Watt V Hertfordshire County Council & Day V High Performance Sports)
Damage
The legal test that a C's loss was caused by a breach of duty of care. This loss or damage must not be too remote.
How do we prove 'damage' - Causation
Factual - the 'but for' test (Barnett V Chelsea and Kensington Hospital)
Legal - Was there a novus actus interveniens? Break in the chain can occur by the C, an act of nature of a 3rd party
Remoteness of damage - must not be too remote. Rule comes from the case of The Wagon Mound.
Other factors:
D will be liable if the type of injury was foreseeable (Bradford V Robinson)
The thin skull rule: 'take your victim as you find him' (Smith V Leech Brain and Co)