Negligence

• Baron Alderson described negligence as 'failing to do something which the reasonable person would do or doing something which the reasonable person wouldn't do' - Blyth v Birmingham Waterworks Co
• 7 established duties:

  • limit harm caused
  • relationship
  • voluntarily
  • public office
  • contractual
  • duty through precedent
  • statutory (Road Traffic Act)
• Donoghue v Stevenson - you owe a duty to your neighbour, anyone who can be affected by your actions
• If there is an existing DOC that has already been established then the court should apply it - Robinson v CCWY
• Must be fair, just and reasonable to impose a DOC
• To test whether a person has breached their DOC, it is judged using an objective test to the standard of the reasonable person - Vaughen v Menlove
• Professionals (doctors) - use the precedent in the case of Bolam, D is judged to the standards of the similar expert

  • Montgomery - doctors are under a duty to disclose anything serious during childbirth
• Learners - judged by the standard of the reasonable competent person doing the same thing - Nettleship v Weston
• Children - judged by the standards of the reasonable child of the same age - Mullins v Richard
• Skilled defendant - standard is that of the reasonably skilled person in that trade, e.g. mechanic - Wells v Cooper
• RF 1: Special Characteristics - D owes a higher DOC for those with special characteristics that they are aware of - Paris v Stepney Borough Council
• RF 2: Size of the risk - If there is a higher likelihood of harm occurring, higher DOC is owed - Bolton v Stone for small risks, Haley v LEB for higher risks
• RF 3: Have appropriate precautions been taken - consider cost and practicality - Latimer v AEC
• RF 4: Were the risks known - Roe v Minister of Health
• RF 5 : Benefit to taking the risk - if the risk is for greater public benefit, you are not in breach - Day v High Performance Sports
• Causation in Fact - 'but for' test, but for D's actions, would C have suffered injury? - Barnett v Chelsea and Kensington Hospital
• Causation in Law - damage must be reasonably foreseeable and not too remote - The Wagon Mound
• Eggshell conditions - D is fully liable for all of C's injuries not matter how vulnerable they are - Smith v Leech Brain
• Contributory Negligence (Defence) - partial defence, will result in a reduction of damages, see Law Reform (Contributory Negligence) Act 1945
• Consent (Defence) - C must have full knowledge of risk involved, they exercised free choice and they voluntarily accepted the risk