Negligence

• Claimant (CI)


  The person bringing the legal claim
• Defendant (D)


  The person being sued
• Breach of Duty of Care


  When the Defendant (D) acted carelessly and failed to meet the standard of care owed to the Claimant (CI)
• Proving breach of duty of care

  1. CI shows D owed them a duty of care

  2. CI proves D breached their duty
• Reasonable person standard


  The accepted general standard of care, established in Blyth v Birmingham Waterworks (1865)
• Reasonable person


  A hypothetical ordinary person performing the task competently, also known as "the man on the Clapham omnibus"
• The standard of care is objective - what would the reasonable person have foreseen, not what did the particular D foresee
• Adjustments to the standard of care

  • For an inexperienced learner
  • For a skilled professional
  • For a child
• Judging an inexperienced learner


  Judged at the standard of the competent, more experienced person (Nettleship v Weston 1971)
• Judging a skilled professional

  Judged by the standard of the profession as a whole, not the individual's experience (Bolam v Friern Hospital Management Committee 1957)
• A junior professional is expected to show the same level of care as a competent person holding the same post (Wilsher v Essex Area Health Authority 1988)
• Common practice


  If there is more than one body of opinion within a profession that would support D's course of action, then D will not be in breach of their duty of care
• If the practice carried out by the professional is deemed illogical by the court then it will not matter if it is common practice within the profession (Bolitho v City & Hackney Health Authority 1998)
• Judging a non-professional


  Judged against the standards of a reasonable person doing that job, not a professional (Wells v Cooper 1958)
• Judging a child


  Judged at the standard of a reasonable child of the same age at the time of the incident (Mullin v Richards 1998)
• Factors considered in determining breach of duty

  • Probability of injury occurring
  • Seriousness of the risk
  • Cost of taking precautions
  • Social value of the activity
• Special characteristics of the Claimant


  If the Claimant has some characteristic or incapacity which increases the risk of harm, greater precautions are needed (Paris v Stepney Borough Council 1951)
• Size/magnitude/scale of risk of harm

  The greater the risk of harm, the more precautions are needed. Where the risk is low/small, fewer precautions are expected (Bolton v Stone 1951, Haley v London Electricity Board 1964)
• Precautions: Cost and practicality

  Courts balance the risk involved against the cost and effort of taking adequate precautions. If the cost is disproportionate, there is no breach (Latimer v AEC Ltd 1953)
• D will only be expected to take precautions against known risks. If the risk of harm is unknown, there is no breach of duty (Roe v Minister of Health 1954)
• Potential benefits of the risk (Public benefit)

  Greater risks can be taken in an emergency situation where there is potential benefit to the public (Watt v Hertfordshire County Council 1954, Day v High Performance Sports 2003)
• The nature of the work of emergency services does not always make them safe from negligence claims (Armsden v Kent Police 2000)