Negligence

• Within tort of negligence, there are three stages to a claim: duty of care, breach of duty and resulting damage- all three must be applied and satisfied for a claim to succeed.
• For the first stage, the claimant must prove the defendant owed him a duty of care. Lord Atkin in Donoghue V Stevenson established the neighbour test- ‘you should take reasonable care to avoid acts/ omissions that would cause injury to your neighbour’ (anyone closely affected by your actions/ omissions). Apply Within Robinson, the SC were clear that, when a precedent establishes a DOC in a certain type of case, it must be followed. Apply
• For the second stage, the judge must decide whether there has been a breach of the DOC by the defendant. Established in Blyth, the defendant is judged by the standards of an ordinary, reasonable person in that situation with similar skill and experience. Apply.
• To decide if defendant has breached his DOC, multiple factors are taken into account which heighten/ lower the standard of care required. One of these factors is: were the risks known about at the time of the accident? Established in Roe V Minister of Health, there is no obligation on the defendant to guard against risks other than those that are within his reasonable contemplation. Apply. Another factor is the size of the risk and wether this was high Hayley London/ or low Bolton V Stone Apply.
• Lastly for stage three, we look at wether the breach caused the claimants damage. For this, factual and legal causation are used and both need to be satisfied. For Factual Causation, the ‘but for’ test is used: but for the defendants actions/ omissions, would the damage have occurred?- used in Barnett Apply
• For legal causation, we look at the remoteness of damage- was the damage to the claimant reasonably foreseeable or was it too remote from the breach? Established in Wagon Mound Next, we look at wether there is an intervening act or not- any intervening act must be extreme and unforeseeable if it is to break the chain.
• • OIR Has the claimant got any special characteristics which makes potential harm suffered more serious? Paris V Stephney

  • OIR Have all practical precautions been taken? Latimer

  • OIR Is there a public benefit to the risk? Watt V Hertfordshire Council
• • OIR act of claimant McKew V Holland

  • OIR act of nature Carslogie Steamship

  • OIR act of third party Knightley V Johns

  • OIR multiple causes Wilsher V Essex
• Defences:

  • OIR contributory negligence- person suffers damage partly to their own fault Froom V Butcher

  • OIR volenti non fit injuria- C must have full knowledge and understanding of the risk to consent Murray
• For damages, the aim is to put the claimant in the position they would’ve been in if the tort had not been committed. For special damages, these are damages that have a specific value and are claimed up to the date of the trial. However, the principle of mitigation applies and so the court will only allow for recovery of losses which are considered reasonable in the circumstances. Apply For general damages, these are damages that cannot be precisely calculated and are up to the judge to decide. Apply