AO1 Negligence

    Cards (16)

    • What is negligence?

      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?
      1. Duty of care
      2. Breach of duty
      3. 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 existing statutes 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)
      1. Was damage reasonably foreseeable? (Kent V Griffiths)
      2. Is there a sufficiently proximate relationship? (Bourhill V Young)
      3. 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 particular skill/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
      1. Factual - the 'but for' test (Barnett V Chelsea and Kensington Hospital)
      2. Legal - Was there a novus actus interveniens? Break in the chain can occur by the C, an act of nature of a 3rd party
      3. 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)