Tort Law: Negligence

Negligence

Failure to take reasonable care of your neighbour

Donoghue V Stevenson

Establishing a Duty: Robinson V Chief Constable of West Yorkshire Police

1) Following existing precedents or

2) Reason by analogy

3)For a novel situation apply Caparo Industries V Dickman; Caparo test

What is examples of existing precedent for Employers- Employees?

Health and Safety at work Act 1974

What is examples of existing precedent for Drivers to Road users or Pedestrians?

Road Traffic Act 1990

What is examples of existing precedent for Manufactures and Consumers?

Donoghue V Stevenson

What is examples of existing precedent for Doctors and Patients?

Barnett V Chelsea and Kengsiton Hospitals

Establishing a Duty: Caparo Test

a) Is the harm reasonably foreseeable

b) Is the harm proximate in time, space or law? (Bourhill V Young)
c)Would it be fair, just and reasonable to impose a duty of care (Hill V Chief Constable of West Yorkshire Police)

Breach of Duty: Establishing the reasonable person

Failure to reach the standard of a reasonable person

Blythe V Birmingham Waterworks

What are the factors not considered for establishing the reasonable person?

Personal Judgements (Vaughan V Menlove)

Learners (Nettleship V Weston)

What are the factors considered for establishing the reasonable person?

Age: D should be judged to standard of a reasonable person of that age

(Orchard V Lee)

Professional Qualifications: D should be judges to standard of a reasonable proffessional

(Bolam V Frein Hospital Management Committee)

What are the factors considered for doctors?

Substantial Body: A doctor will not be negligent if a substantial body of medical opinion would of done the same thing

(Bolam V Frein Hospital Mnagement Committee)

Logically Indefensible: Does not have to accept one body of medical expert opinion if it is logically indefensible

(Bolithio V City of Hackney Authority)

Patient Chooses: The patient then takes on this responsibility of choosing the treatment

(Montgomery V Lanarkshire Health Board)

Breach of Duity (Risk Factors): Special Characteristics

Risk was known to be greater for them

(Paris V Stepney Borough Council)

Breach of Duity (Risk Factors): The Size of the Risk

How likely consequence was to occur

(Bolton V Stone)

Breach of Duity (Risk Factors):The adequacy of Precautions

Given the size of the risk, did the D take adequate precautions to mitigate the risk

(Latimer V AEC)

Breach of Duity (Risk Factors): The Knowledge of the Risk

Not known by the reasonable person

(Roe V Minister for Health)

Breach of Duity (Risk Factors):Public Benefit

How useful was the activity in society

(Watt V Hetfordshire County Council)

Factual Causation

‘But for test’: ‘But for the defendants negligence would C have suffered the damages’

(Barnett V Chelsea and Kensington Hospital Management Committee)

Legal Causation (Remoteness of damage)

Was the type of damage foreseeable from the time the breach occurred (The Wagon Mound)

The Thin Skull Rule

As long as the type of damage was foreseeable, the extent to which the damage takes effect is irrelevant (Smith V Brain Leech Co)

Breaking the chain of causation

Acts of the claimant- McKew V Holland

Acts of third parties- Knightly V Johns

Acts of Nature- Carslogie Steamship Co V Royal Norwegian Government

What are the defences of Negligence?

Contributory Negligence

Volenti

How does Robinson V CCWYP Free Up Court Time?

• Robinson V Chief Constable of West Yorkshire Police: Following existing precedent which prevents potential backlog

• However rushed cases reduces developments

Why is it an advantage if the establishment of duty has been clarified?

This provides certainty in the law which makes it fair

What is the case which shows an establishment of duty has been clarified?

Robinson V CCWYP

Why is it an advantage if Robinson makes clear existing precedent which should be followed first and then the courts should reason slowly by analogy?

The law gains greater certainty and becomes more ascertainable- a cornerstone of the rule of law and makes it easier for lawyers to advice clients

Why can it be argued to be a disadvantage following existing precedents?

Can lead to slower developments in the law as only those with the funds to appeal to the highest appellate courts can afford to challenge existing precedents

How does the law on duty enable public policy concerns to be considered?

The use of fair just and reasonable enables liability to be excluded in certain cases

What is the case which shows the use of fair, just and reasonable?

Hill V CCWYP

Why is it an advantage to use fair just and reasonable?

This means that public policy concerns such as closing the floodgates or avoiding excessive liability can be considered when the courts make a determination as to whether or not a duty of care is owned

What can it be argued to be a disadvantage using fair just and reasonable?

A duty of care not being fair just and reasonable to impose sill means that the claimant as in Hill, has suffered damages with no means of recourse. This goes against a fundamental principle of tort law; restoring the claimant back to their original position

How does Caparo V Dickman Industries Avoid Bystander Liability?

• Caparo V Dickman Industries

• Proximity

• Prevents Liability for no fault (Bournhill V Young)

• Should people owe each other a moral duty of care?

• Proximity in law is more difficult to define (Donoghue V Stephenson)

• Categories of negligence are never defined

When evaluating breach how are only certain characteristics decided?

• Orchard V Lee (Age) Professional Qualifications (Bolam V Frein Hospital Management Committee

• Takes into account different peoples maturities which is more realistic

• Those who are have Professional Qualifications should be held to a standard of a reasonable professional

• Claimants lose out for no fault of their own- Fails to take into account personal Judgement (Vaughn V Menlove) and whether they are a learner or experienced (Nettleship V Weston)

Why is it an advantage if the objective tests are fair?

Objective tests protect the claimant more effectively

What is a case which shows an objective test under breach?

Nettleship V Weston

Why is it an advantage if you do not take into account whether or not a person is a learner?

The courts are able to ensure those who suffer harm are adequately compensated. This meets one of the main aims of tort: restitution

What is an evaluation of not taking into account whether the person is a learner?

It seems harsh to adjudge learners to the same standard as a reasonable person; the reasoning that insures will pay is also questionable because this will increase the defendants insurance premiums which are already likely to be higher because their a learner

How is it an advantage to consider the size and practicality of risk is fair on defendants?

This ensures defendants are not placed under an unrealistic financial burden

What is the case which considers the size and practicality of risk being fair on defendants?

Bolton V Stone

Why is it an advantage to consider the size and practicality of risk for defendants?

Defendants are only expected to do what is reasonable to mitigate the risk to an acceptable level. This highlights how the courts accept that there is risk to every activity and accidents do not necessarily corelate with fault

What is a disadvantage of considering the size and practicality of risk?

What is and is not an acceptable level of risk is a subjective opinion and reflects the judiciaries view of where this line should be drawn with little parliamentary oversight

How does the type of damage requirement from the Wagon Mound lead to inconsistency?

This is unfair as it creates uncertainty where similar cases do not have the same results

What is the case for the type of damage requirement from the Wagon Mound?

Doughty V Turner Asbestos

Why is it seen as a disadvantage under Doughty V Turner Asbestos?

In Doughty, the courts held that theres a difference between damage caused by a “splash” and a chemical eruption. As the chemical reaction was caused molten metal to injure the claimanet, and this reaction was not known about at the time, the damage was deemed to remote. This seems like an absurd distinction from the perspective of the claimant who was burnt from dropping asbestos in a vat of liquid metal

What is an advantage of the type of damage requirement from the Wagon Mound?

By having such flexibility, the courts are able to ensure that only those at fault are liable in negligence. The company could not have taken precautions against chemical eruptions as that was not a known about possibility at the time

Why is it an advantage if the court take into account the actions of the claimant?

This means that an employer is not liable for injury that cannot be said to be their fault via an intervening act (novus actus interveniens)

What is the case for where the court take into account the actions of the claimant?

Holland V McKew

Where a claimant does something such as jumping down concrete stairs what is it clear that?

Its clear that the original tortfeassor cannot be said to be at fault. Therefore, as the law does not hold the tortfeassor responsible it can be said to be fair

What is a negative of the courts taking into account the actions of the claimant?

The Courts have made some bizarre decisions in this regard. In Spencer V Wincanton the court held that the defendant attempting to fill up their car, while on crutches, and not on a false leg was not an novus actus interveniens