Negligence

• Negligence

  Negligence is failure to take proper care of something.

  There are 3 elements to negligence:

  1. duty of care
  2. breach of duty
  3. damage caused
• Liability in negligence

  Duty of care refers to the circumstances and relationships which the law recognises give rise to a legal duty of care.

  A failure to take such care can result in the defendant being liable to pay damages to a party who is injured as a result of their breach of duty.

  Defendant will only be liable for damage caused which are not 'too remote' a consequence of the breach.

  Existence of a duty of care for personal injury and property damages originates from Donoghue v Stevenson (neighbour principle) defined by Lord Atkin.
• Duty of care

  Caparo v Dickman, new test.

  1. reasonably foreseeable harm
  2. sufficient proximity of relationship
  3. Fair Just and Reasonable.
• Forseeability

  Objective test which questions whether the reasonable person could foresee that damage or injury could be caused to another person by his acts or omissions. (Kent v Griffiths)
• Proximity

  Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship between the claimant and defendant is sufficiently close or proximate (in time, space or relationship) (Bourhill v Young)
• Fair Just and Reasonable

  The finding in Hill v CC West Yorkshire became leading authority that there would be no liability for civil services. However, Robinson v CC West Yorkshire.

  There is an imposed duty of care for:

  • Between a manufacturer and consumer
  • A road user and other road users.
• Breach of duty

  Once a duty of care has been established, the claimant has to prove that the duty of care has been broken by failing to meet the standard of a 'reasonable person'.
• Bolam Test


  Have they acted in a way another professional would have in the same situation?
• Nettleship v Weston


  Judged against the standard of a reasonably qualified competent person, even if still learning.
• Mullin v Richards


  Only expected to reach standard of the defendants age, not a reasonable man. Not to be in a breach of duty. They are held accountable for their age.
• Risk factors:

  • Special characteristics / potential seriousness of harm (Paris v Stepney BC)
  • Size / likelihood of the risk (Bolton v Stone)
  • Appropriate precautions (Latimer v AEC)
  • Risk known (Roe v MoH)
  • Public benefit (Watt v Hertfordshire CC)
• Damage caused (Causation)

  Third part of any negligence claim is for the claimant to prove that the damage suffered was caused by the breach of duty, and that the loss of damage was not too remote.

  There are two parts to damage. Factual causation is decided by the 'but for' test, which was established in (Barnett v Chelsea and Kensington Hospital Management Committee)
• Legal Causation

  Where factual causation is proved, it must be shown that the damage is not too remote from the negligence of the defendant. Established in The Wagon Mound. The defendant will be liable if the injury was foreseeable, even though the precise way in which it happened was not (Hughes v Lord Advocate)
• Eggshell rule


  Another rule of legal causation is that the defendant must hate his/her victim as he/she finds them. If the defendant had a pre-existing condition the defendant is liable for all the consequences (Smith v Leech Brain)