part 1 - negligence

• Duty of Care


  A legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care to avoid foreseeably harm to others
• Duty of Care

  • Obligation of care is to take reasonable care not to cause foreseeable harm, NOT TO PREVENT HARM
• Leading cases on Duty of Care

  • Donoghue v Stevenson - Neighbour principle, ultimate consumer, close enough proximity
  • Muir v Glasgow Corporation - Proximity: scope of duty
• Duty not owed due to omission of act
• Test to determine liability

  1. Establish duty of care

  2. Establish breach of duty

  3. Establish a causal link

  4. Remoteness
• Normally recoverable - personal injury and property damage arising from positive conduct by the defender
• Breach of Duty

  Where insufficient care has been exercised and conduct has fallen below the standard of the reasonable person
• Standard of care

  • Objective - standard of the reasonable person
  • Standard of care from a learner driver - Nettleship v Weston
• Factors to establish standard of care

  • Probability of injury
  • Degree if injury
  • Practicality of precautions
  • Cost of precautions
  • Utility of defender's activity
• Even if harm is foreseeable, the defender is not negligent if risk of injury is so improbable that the reasonable person could not have predicted it
• Cases on probability of injury

  • Bolton v Stone
  • Lamond v Glasgow Corporation
• Cases on degree of injury

  • Paris v Stepney BC
  • St George v Home Office
• Cases on practicality of precautions

  • Brisco v SofS for Scotland
  • Latimer v AEC Ltd
  • Collins v Firs Quench Retailing Ltd
• Reasonable person will consider the cost of precautions and balance this against the probability of risk of harm and the seriousness of injuries likely to be sustained
• Defender's duty is to not be negligent; not to act to eliminate all risks of injury to the pursuer
• Facts matter more than common practice when setting the standard of care
• Causation

  1. Factual causation - Causa sine qua non - 'But for' test

  2. Legal causation - Causa Causans - immediate, dominant, or effective cause

  3. Intervening act - Novus actus interveniens - something unreasonable, unwarrantable, unforeseeable that happens that breaks the chain of causation
• Cases on factual causation

  • McWilliams v Archibald Arrol & Co
  • Barnett v Chealsea & Kensington Hospital Management Committee
  • Kay's Tutor v Ayrshire and Arran Health Board
  • McTear v Imperial Tobacco Ltd
• Factual cause is not sufficient on its own, there must also be a legal cause of the pursuer's harm
• Law Reform (Contributory Negligence) Act 1945 gives the court power to reduce damages awarded to the pursuer in proportion to the pursuer's responsibility for her own injuries
• Factors to decide if breach constitutes the legal cause of injury

  • Foreseeability
  • Order of events
• Cases on foreseeability

  • Sayers v Harlow UDC
  • McKew v Holland Hannen & Cubitts
• Remoteness

  Remoteness of damage is connected with the extent of liability (reparation) - some losses can be too remote and don't have to be recovered
• Remoteness of injury may not be confused with remoteness of losses