Negligence

• Negligence


  A common law tort that has been created by judicial decisions
• Negligence


  • Harm is done to a protected characteristic of a claimant, leading to personal injury or damage to property
• The tort of negligence can apply in a wide variety of situations where a person is injured, or their property is damaged
• Situations where negligence can apply

  • A car accident which damages the vehicles and injures a passenger
  • People who are injured in the workplace or through medical negligence
• Negligence


  Failing to do something which the reasonable person would do or doing something which the reasonable person would not do
• Negligence can arise from either an act or omission
• Negligence claim


  • Claimant has to show the defendant is at fault and is therefore to blame for the injuries/damage
  • Standard of proof is a balance of probabilities- it is more likely than not the defendant's actions caused the injures/damage
  • Burden of proving this is on the claimant
• Liability in negligence


  • Duty of care + Breach of duty + Damage caused = Liable in negligence
• Duty of care


  Establishing a legal relationship between the parties
• Neighbour principle


  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour... who then is my neighbour? Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected when I am directing my mind to the acts or omissions in question
• Caparo test


  • Was damage or harm reasonably foreseeable?
  • Is there a sufficiently proximate (close) relationship?
  • Is it fair, just, and reasonable to impose a duty of care?
• The courts are generally reluctant to find it fair, just and reasonable to impose a duty of care on public authorities such as the police
• Breach of duty


  The claimant must prove the duty has been breached using an objective 'reasonable man' test
• Reasonable person


  The ordinary person performing the task competently- it could be a reasonable driver, doctor, or manufacturer
• Reasonable learner


  • Judged at the standard of the competent, more experienced person
• Reasonable child


  • The standard for a child is that of a reasonable person of the defendant's age at the time of the accident
• Reasonable professional


  • Does the defendant's conduct fall below the standard of the ordinary, competent member of that profession?
  • Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant?
• The Bolam approach was altered in Montgomery v Lanarkshire Health Board (2015), where the court now looks at risk factors and whether the claimant should be more aware of any risks before agreeing to anything.
• Bolam principle


  To ask the following questions:

  1. Does the D conduct fall below the standard of the ordinary, competent member of that profession?
  2. Is there a substantial body of option within the profession that would support the course of action taken by the D?
• If the answer to the first question is 'NO' and to the second 'YES', then there is no breach of duty
• Bolitho v City and Hackney Health Authority


  The court should decide what standard of care applies per case, rather than considering professionals
• Montgomery v Lanarkshire Health Board (2015)


  When the court considers whether there has been a breach of duty, they look at risk factors and whether the claimant should be more aware of any risks before agreeing to anything
• Montgomery case


  • C was a pregnant woman of small stature and a diabetic
  • Doctor did not inform her of the 9-10% risk of shoulder dystocia among diabetic women, where the baby's shoulders are unable to pass through the pelvis, this led to her baby being born with cerebral palsy
• During the trial a professional witness stated that it was proper practise not to disclose risk and so the Court ruled that there was no negligence based on the Balam principle
• On appeal the HoL stated that the doctor was negligent as a person of sound mind is entitled to decide which treatment to undergo and consent must be obtained before invasive treatment
• For there to be informed consent, a doctor must be under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment
• The only exception to this is when informing the patient may pose a risk to their health
• Factors considered when assessing risk

  • Has the claimant any special characteristics?
  • What was the size of the risk?
  • Have all appropriate precautions been taken?
  • Were the risks known about at the time of the accident?
  • Is there a public benefit to taking the risk?
• Cases considering risk factors

  • Paris v Stepney Borough Council (1951)
  • Bolton v Stone (1951)
  • Latimer v AEC Ltd (1953)
  • Roe v Minister of Health (1954)
  • Watt v Hertfordshire County Council (1951)
• Factual Causation


  'But For' Test
• Barnett v Chelsea and Kensington Hospital Management Committee (1969)

  • Night-watchman died from arsenic poisoning, but doctor's negligence did not cause his death
• Legal Causation


  Was the damage reasonably foreseeable?
• Remoteness of Damage


  • The Wagon Mound (1961) - Oil spill caused fire damage, which was too remote
  • Bradford v Robinson Rentals (1967) - Employer liable for frostbite, even though unusual injury
• Eggshell rule


  Defendant takes the victim as they find them
• Smith v Leech Brain and Co. (1962)

  • Burn caused cancer in man with pre-existing condition
• Intervening Acts


  Can break the chain of causation
• McKew v Hollands (1969)

  • Claimant's unreasonable actions broke chain of causation
• Carslogie Steamship Co. v Royal Norwegian Government (1952)

  • Storm damage broke chain of causation
• Knightly v Johns (1982)


  • Police officer's actions broke chain of causation
• The test for causation is whether the damage is reasonably foreseeable and a 'natural and probable' cause of the defendant's action