Negligence

Blyth - liability

A person can be liable in tort law if their acts or omissions fail to reach the standard of the reasonable person

Why are the three things needed for a negligence claim?

1. Duty of care

2. Breach of duty

3. Causation

Duty of care

Established in Donoghue V Stevenson - a claimant must prove that the defendant owed them a duty of care aka defendant should have taken actions not to harm them from their actions

What did Robinson confirm?

if existing precedent exists then it should be applied; If not judges can reason by analogy (Croydon NHS Trust). For novel cases, apply the Caparo test

Caparo test

1. Was the harm reasonably foreseeable? (Kent V Griffiths)

2. Was the harm proximate in time, space and law? (Bourhill V Young)

3. Would it be fair, just and reasonable to impose a duty of care? (Hill V Chief Constable of West Yorkshire Police)

Kent V Griffiths

Was the harm reasonably foreseeable? - this is based on the average person and whether they could tell the outcome was likely to happen

Bourhill V Young

Was the harm proximate in time, space and law? - this establishes whether the defendant was close to the claimant at the time in physical space or a close legal relationship

Hill V Chief Constable of West Yorkshire Police

Would it be fair, just and reasonable to impose a duty of care? - the court must decided whether imposing the relationship is the correct thing to do in the circumstances

Blyth - breach of duty

Must be proven that given the risk, the defendant failed to act as a reasonable person would have

Reasonable person - breach of duty

• Objective standard (Blyth)

• Does not consider learner status as they are not the reasonable person (Nettleship V Weston)

• Courts will consider the defendants age (Orchard V Lee)

• Courts will consider professionalism (Bolam)

Orchard V Lee

Courts will consider age when defining reasonable person; Where reasonable person test is applied to a child, the reasonable standard becomes that of a child

Nettleship V Weston

Courts will not consider learner status when establishing the reasonable person

Bolam Test

Courts will consider professionalism when establishing the reasonable person

• Would a sizeable body of medical opinion have done the same? If yes, there is no negligence

Relevant factors in establishing a breach

Where the court finds the defendant did not act in a reasonable way given the level of risk there’s a breach

• Size of Risk (Bolton v Stone)

• Characteristics of claimant (Paris V Stephney Borough Council)

• Knowledge of risk (Roe v Minister fro Health)

• Precautions taken (Latimer)

• Social benefit

Bolton V Stone

Size of risk - hit by cricket ball outside her home which had only happened a minimal amount of times since the start of the club making the risk exceptionally small; No negligence

Paris V Stephney Borough Council

Characteristics of claimant - protective goggles were not provided to employee who was only sighted in one eye meaning he lost sight in the other; Held that duty is owed to the individual therefore they were negligent

Roe V Minister of Health

Knowledge of the risk - contaminated injections were used leading to paralysis yet doctors did not know this was possible; Not negligent as people cannot be held liable for risk they were not aware of

Latimer

Precautions - employee slipped on wet floor following a rain storm despite them frequently mopping and putting up signs; Not negligent as they had taken reasonable steps to limit the risk and it would not have been reasonable to close the factory

Factual causation

But for the actions of D would the harm have happened? if no, factual causation is established (Barnett)

But for test

Barnett

Legal causation

Was the type of damage foreseeable from the breach? if yes, legal causation is established (Wagon Mound)

Wagon Mound

Was the type of damage foreseeable from the breach?

Eggshell rule

As long as the damage is foreseeable, the defendant is liable for the full extent of injuries even if claimant suffers more than average person would (Smith V Brain Leech Co.)

Smith v Brain Leech Co

Eggshell rule - a burn led to cancer; defendant still liable for full extent of injury even though others would not have developed cancer

Things that break chain of causation

• Acts of claimant

• Act of third party

• Acts of nature

Acts of third party

A third party makes a decision which makes them more responsible for subsequent accidents

Acts of claimant

Claimant does something so daft, they become responsible for part or all their injuries

Act of nature

Freak act of nature overtakes from the defendant in terms of damage; D is still liable for initial damage

Defences

• Contributory negligence

• Volenti (Consent)

Contributory negligence

D is party or full responsible for their own loss; Defendant does not need to show the claimant owed them a duty of care but rather that the claimant caused their own injury partly or wholly

• Can lead to a reduction in damages, can be 100% but this is unlikely (Jayes)

Volenti (Consent)

A full defence meaning damages are reduces to 0; Subjective test meaning D must understand all of these subjectively

• C must know and understand the exact risks

• C must exercise free choice which excludes if they have to work there (Smith V Baker and Sons)

• C must voluntarily accept the risk which excludes police officers duty to act (Haynes V Harwood)

Smith v Baker

Cannot be consent if C has to work there

Haynes V Harwood

Cannot be consent if police officers duty to act