Negligence

Duty of care

The D must owe the C a duty of care. Camaro v Dickman established a 3 stage test.

Neighbour principle

Donoghue v Stevenson: having a relationship of close proximity.

Exam tip- never discuss Donoghue v Stevenson.

What are the stages of duty of care?

1) was the loss/damage to the C reasonably foreseeable- Kent v Griffiths.

2) was there a relationship of close proximity between the D and the C. Proximity means “closeness” which could be close in space or time, or in law, meaning a legal relationship. Bourhill v Young.

3) is it fair, just and reasonable to impose a duty. Would the claim “open the floodgates”- Hill v Chief Constable of W Yorkshire Police. If the D has insurance, it is an indication that it would be fair.

Obvious relationships in duty of care?

Exam tip- if they have an obvious relationship, say “As C & D have a ____ relationship, it is obvious a duty is owed (Robinson).

SR- the police owe a duty of care to avoid causing, by a positive act, foreseeable personal injury to another person (Robinson).

Breach of duty

The D must have breached the duty. This is an objective test. Alderson B in Blyth v Birmingham Waterworks- “Doing something a reasonable man wouldn’t do or not doing something a reasonable man would do”.

What are the rules for breach of duty?

If a D is an expert or possesses a particular skill then they will be judged by the standards of other reasonably competent professionals- Bolam/Bolitho.

If the D is inexperienced/learner, they will be judged by the standards of someone experienced and competent- Nettleship v Weston.

Children are judged by the standards of a reasonable child of a similar age- Mullins v Richards.

What are the risk factors?

Risk factors can raise or lower the standard of care required of the reasonable person.

1) Probability of harm. More care would need to be taken if there’s a higher probability of harm. The reasonable man doesn’t take precautions against minute risks, but does against big risks- Bolton v Stone.

2)The magnitude of the risk. The more serious the risk of the potential injury, the more care needs to be taken- Paris v Stepney Council.

3) The cost and practicality of precautions. If the cost of taking precautions to eliminate the risk is too great, the D may not be in breach of duty- Latimer.

4) Social benefits of the risk. Some risks have social utility, here there will be no breach- Watt v Hertfordshire Council.

Exam tip- after each risk factor, finish with “this indicates they have acted unreasonably”.

Breach caused the damage

It must be proved that the breach of duty has caused the damage to the C. This is an issue of causation. Exam tip- (Factual, legal and intervening acts).

Factual causation

Apply the “but for” test. ‘But for the D’s actions/omissions, would the damage have occurred?’ Barnett v Chelsea hospital.

Legal causation

The remoteness of the damage. If the damage was unforeseeable then it may be too remote and D will not be the cause in law- Wagon Mound No 1.

SR- the D need not predict the precise way in which the injury was caused so long as injury of the same kind was foreseeable- Hughes v Lord Advocate.

Intervening acts

There must be no new intervening act which breaks the chain of causation. Thin skull rule: Robinson v Post Office/ Smith v Leech Brain Co: the D must take his claimant as he finds him.