negligence

• Negligence


  An area of civil law where a claimant seeks remedies from a defendant for a wrong that has occurred
• Steps to problem-solve a negligence exam scenario

  1. Learn the legal rules and principles (AO1)

  2. Apply them to the given scenario (AO2)
• Duty of care


  The first step in proving negligence, establishing whether the defendant owed a duty of care to the claimant
• Donoghue v Stephenson (1932)


  • Established the modern law of negligence, requiring proof of duty of care, breach of duty, and foreseeable loss
  • Established the 'neighbour principle' - you must take reasonable care to avoid acts or omissions which could injure your neighbour
• Neighbour principle


  Anyone you ought to bear in mind, who could be injured by your act or omission - persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation
• Three elements for a successful negligence claim

  1. Duty of care

  2. Breach of duty

  3. Damage caused
• Duty of care test


  The current test is from Robinson v Chief Constable of West Yorkshire (2018) - no single definitive test, look to apply existing precedents or statutory authority first, only use the Caparo three-stage test if dealing with a new or novel case
• The concept of duty of care has been developed through significant case law over time
• Caparo three-stage test


  1. Foreseeability - was the damage or loss foreseeable from the defendant's actions?<|>2. Proximity - is there a legally recognised relationship between the claimant and defendant?<|>3. Fair, just and reasonable - is it legally correct to impose the duty on the defendant based on what is best for society as a whole?
• The Caparo test is now only used in novel situations, not in cases where an existing precedent or statutory authority can be applied
• Kent v Griffiths (2000)

  It is foreseeable that an injured person waiting for an ambulance may end up having more severe injuries as a consequence of the delay
• Bourhill v Young (1943)


  There was not sufficient proximity between the claimant and defendant when the incident occurred
• A claim is possible if the claimant is related to the victim of the negligence (McLoughlin v O'Brien 1983)
• The courts should generally establish a duty by looking at existing duty situations and ones with clear analogy, rather than strictly applying the Caparo test (Robinson v Chief Constable of West Yorkshire 2018)
• Public authorities are subject to the same liabilities in tort law as private individuals, they are under a duty not to cause the public harm via their own actions (Robinson v Chief Constable of West Yorkshire 2018)
• Breach of duty


  To establish a claim, the defendant's act must be compared to that of a reasonable person in the same situation
• Reasonable person standard


  Established in Vaughan v Menlove (1837) and Blyth v Company Proprietors of the Birmingham Water Works (1856) - the standard of care required of the defendant
• Public authorities


  Subject to the same liabilities in tort law as private individuals
• Public authorities


  • Not under a duty to prevent harm from third parties
  • Police are not exempt from claims in negligence
• Robinson


  Key case
• No single definitive test to assess the existence of a duty of care
• Assessing duty of care

  1. In the first instance look to apply an existing precedent or statutory authority

  2. Only use Caparo three stage tests if dealing with a new or novel case of being invited to depart from a previous authority
• Breach of duty


  Comparing the act of the defendant to that of a reasonable person in that given situation
• Reasonable person


  The ordinary person in the street or doing a task
• The standard of care is an objective test, but an appropriate degree of knowledge may be added to the reasonable person
• Reasonable learner


  Judged at the standard of the competent, more experienced person
• Reasonable child


  Judged by the standard of a reasonable person of the defendant's age at the time of the accident
• Reasonable professional


  Judged by the standard of the profession as a whole
• Assessing breach of duty for professionals

  1. Does the defendant's conduct fall below the standard of the ordinary, competent member of that profession?

  2. Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant?
• Montgomery v Lanarkshire Health Board (2015)

  Changed the Bolam test to a greater duty to attempt the disclosure of risks to the patient
• Reasonable person of that profession or calling (skilled defendants)


  Judged by the standards of a reasonable person skilled in that particular trade or calling
• Ordinary people are not expected to use the standards as that of skilled people
• Variations on the reasonable person

  • Professionals
  • Learners
  • Children
• Children should be judged by the standard of a 15 year old, not a reasonable adult
• Junior doctors' actions judged by same standard as a qualified doctor
• Bolam v Friern Barnet Hospital Management Committee (1957)


  Professionals judged by the standard of the profession as a whole
• Montgomery v Lanarkshire Health Board (2015)


  Professionals (doctors) have a duty to disclose risks to the patient and ensure they understand the considerations for and against each option
• Risk factors the court considers for breach of duty

  • Risk
  • Adequate precautions
  • Special characteristics
  • Policy - public benefit
  • Unknown risks
• Determining if defendant breached duty

  Consider factors like claimant's special characteristics, size of risk, precautions taken, whether risks were known, and public benefit
• Causation


  Establishing the link between the defendant's act/omission and the damage caused