Negligence

• Introduction

  Definition of negligence

  • the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances
• Stage 1

  Duty of care

  
  

  Donoghue v Stevenson

  • Neighbour principle
  • “You should take reasonable care to avoid acts or omissions that would cause injury to your neighbour”
  • anyone closely affected by your acts/omissions

  Robinson 2018

  • Duty of care that exists in a particular type of case, the court should follow that precedent
  • Drivers to road users - Nettleship
  • Manufacturers to consumers - Donoghue
  • Doctors to patients - Bolam/Bolitho
  • Solicitor to client - Arthur JS Hall
  • Family relations - Gibbins v Proctor
  • Dangerous situation and failing to put it right - Miller
• Stage 1.2

  • Duty of care = Caparo test, if not an established category

  1. Reasonably foreseeable D's act will cause damage
  2. Proximity of time, space, relationship
  3. Fair, just and reasonable to impose duty
• Stage 2

  
  

  Breach

  Blyth:

  • D is judged by the standards of an ordinary reasonable person in that situation with similar skill & experience

  Additional Standards:

  • Well v Cooper: Ordinary person won't be judged to standards of a professional
  • Bolam: Expert/has particular skill will be judged by standard of other competent professionals
  • Wilsher: No account taken of D's actual experience
  • Montgomery: Doctor's under duty to ensure patients are aware of material risks involved
  • Nettleship: Learners/inexperienced held to standard of experienced
  • Mullins: Children
• Stage 2.2


  Factors that heighten/lower standard

  1. Were the risks known about at the time? - Roe v Minister of Health
  2. Size of Risk - Bolton v Stone (small)/ Hayley London Electricity Board (high)
  3. Special Characteristics - Paris v Stepney Council
  4. Have all practical precautions been taken? - Latimer
  5. Is there a public benefit to the risk? - Watt v Hertfordshire Council
• Stage 3

  Causation

  Factual - But for test - Barnett

  Legal - Remoteness of damage - Wagon Mound

  • Precise way injury caused does not have to be foreseen - Hughes/Smith - Thin Skull Rule
• Stage 4

  Novus Actus Interveniens

  NAI by claimant - McKew

  NAI by nature - Carslogie Steamship

  NAI by 3rd party - Knightley

  Multiple cause of consequence - Wilsher
• General Defences


  Contributory negligence

  • Law Reform (Contributory Negligence) Act 1945
  • Froom v Butcher

  Volenti - Consent

  • Full knowledge and freely consent (like sports)
  • Murray
• Remedies


  Special damages

  • Specific value
  • Medical expenses, loss of earnings till trial, prescription costs, travel expenses

  General damages

  • Cannot be calculated (up to judge)
  • Pain and suffering, loss of amenity, future loss of earnings, medical expenses
• Injunctions


  Prohibitory

  • Prevents D from committing a tort or from continuing with it
  • Miller v Jackson

  Mandatory

  • Make D rectify consequences of actions