Negligence

What is negligence and what does it cover?

- means failure to take proper care to the claimant

What does negligence cover?

overs situations where a person is injured or property is damaged because of an accident- the burden of proof lies with the claimant.

What is the 3 part test for negligence?

- duty of care

- breach of duty

- caused damage ( that was reasonably foreseeable)

Duty of care

- can be established in 3 ways - stated in Robinson 2018

- statutory duty ( acts of parliament)

- existing precedent

- fair, just and reasonable to impose a duty ( when there is no existing precedent)

When there is no exsiting precedent what else is done ?

- established through reason by analogy - decision from a similar case can be applied - considering where it was fair just and reasonable

manufacturer and the consumer establishing duty of care

Donoghue v Stevenson

Road traffic Act 1988

statutory duty- established a duty of care between car users

What are the 3 factors considered to see if there has been a breach of duty?

- objective test ( reasonable person test)

- certain characteristics of d will be considered child/learner/professional

- risk factors adjusted by the standard of care

- explained d breaches their duty if they "fail to do something that a reasonable person would do or do something a reasonable person wouldn't do

Blythe ( objective test)

what are the Characteristics of d which will be considered?

- professional

- learner

- child< against the standard of a reasonable child

professinal

Bolam v Friern p doctor was giving electric shock treatment< should've gave relaxants - patient broke their bones

1. does the Ds conduct fall bellow the standards of the ordinary component.

2. is there a substantial body of opinion within the profession that would support the course of action taken by the defendant?

( if answer to the first is no and 2nd is yes- not breaches their duty of care)

Child

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

duty of care - child to child

Learner

Nettleship 1971 - Breach - Learners - learner driver crash.

What are the risk factors which can be adjusted?

size of risk

practical precautions

public benefit

knowledge

vulnerable victim

Size of risk case

Bolton v Stone - cricket ball hit out of ground and injured someone, very SMALL risk, although foreseeable taking such a small risk is not a breach

Vulnerable victim case

Paris v Stepney BC - Vulnerable victims (such as being partially blind) mean that the D owes the C a greater level of care.

- should've provided googles

Public benefit case

Watt v Hertfordshire - The emergency of the situation and utility of the D's conduct in saving a life outweighed the need to take precautions.

- women trapped under a lorry

- no breach of duty

What are the 3 parts to caused damage?

factual causation- "but for test"

legal causation - intervening acts+test

remoteness - the type of damage must not be too remote and reasonably foreseeable

Factual causation case

Barnett v Chelsea - Arsenic poisoning < C told to go home

Hospital breached duty but it did not cause death.

No liability — Mr. Barnett would have died anyway.

egg shell rule case

Smith v Leech Brain (eggshell rule)

take your victim as you find them.

- pre-existing cancerous cells

d was liable

Intervening act of 3rd party

Knightly v Johns - Intervening act of 3rd party

- johns drove negligently, resulting in crash where car overturned near exit of tunnel. two police officers and senior told other to close tunnel, causing his collision

- mr johns wasn't held liable for knightly injuries

remoteness

Waga mound- Remoteness

- oil spillage causing fire damage wasn't reasonably foreseeable from spilling oil

- the type of damage must be foreseeable

- claimants own actions

McKew v Holland - claimants own actions

C went against medical advice following injury through ds negligence. D was not responsible for subsequent injury, only initial, as going against medical advice is unforeseeable

- c own actions

What are the defences to claim?

contributory negligence

consent

What is contributory negligence?

If you contribute in any way to your own injury, you are not entitled to any damages.

What is consent?

C voluntarily accepts the risk of harm < C must show and have knowledge of risk < voluntarily accepting the risk