Negligence - TOPIC 1

DOC / Breach / Causation (Damage

Elements required for Civil Liability

1. Duty of care - legal relationship

2. Breach Of Duty - Falling below the SOC of the reasonable person in that position

3. Damage - Injury to person or damage to property

Negligence

Definition (AO1)

Causing harm to another without intent or recklessness (that would be criminal) in a situation where harm was objectively foreseeable.

Duty of Care (for Physical injury and property damage) Definition (AO1)

Common Law DOC.

The existence of a DOC establishes a legal relationship established between the C & D i.e gives C the right to sue.

The Neighbour Principle

Definition (AO1)

A DOC is imposed if harm is reasonably foreseeable (Objectively) and that the Claimant is also reasonably within the scope of foreseeability to the Defendant's actions

(Objective) - Would a reasonable person in D’s position have foreseen that the C may be harmed or suffer loss?

A Neighbour

Definition (AO1)

Persons who are so closely and directly affected by D’s act that D ought reasonably to have them in contemplation as being so affected when carrying out the act or omission.

(Objective) - Would a reasonable person in D’s position have foreseen that the C may be harmed or suffer loss?

Neighbour Principle

Case

(Donoghue v Stevenson)

Snail in a bottle - Held manufacturers responsible for consumer

Well established relationships under the Neighbour Principle

(And Cases)

1. Employer - Employee (Walker v Northumberland CC)

2. Doctor - Patient (Montgomery v Lanarkshire)

3. Driver - Passenger & Anyone in vicinity of the road (Nettleship v Weston)

4. Sportsman to other participants (Condon v Basi)

5. Lawyer to client (Arthur JS Hall v Simons)

Foresight of Risk in determining whether a DOC is owed

Cases

(Kent v Griffiths)

C had an asthma attack and ambulance delayed their arrival as they were on a break. As a result, C suffered permanent brain damage. C was compensated as seen as RF

(Topp v London Country Bus)

C was injured after a bus was left unattended and a minor took control, leading to an accident. The court found no duty of care because the bus driver could not foresee the risk.

Public Policy

Definition (AO1)

Factors a judge has in mind which is not to do with the case in front of them but may affect the outcome of the decision, such as societal interests and implications.

i.e Floodgates

Flood Gates

Definition (AO1)

The courts can control the number of claims by imposing a limit on liability (refusing to impose a DOC and thus removing the right to sue) in order to stop the ‘flood’ of litigation that may overwhelm the legal system.

Courts have a general reluctance to impose DOCs on public authorities & emergency services because the money used to settle claims would come from the taxpayer.

DOC in regards to Police Omissions

Definition (AO1)

Police will not be liable (No DOC is owed) to victims harmed by others as a result of Omissions in their investigations

Police Omissions

Case

(Hill v Chief Constable of West Yorkshire)

This case involved the failure of the police to apprehend a known offender, leading to the murder of a victim. The court held that the police did not owe a duty of care to the victim.

Courts approach when deciding to Impose or extend a DOC in new areas.

Test (AO1)

In a situation where there is not an existing DOC, the Court will take an incremental approach based on precedent and look for the closest analogy in existing law. Part of this approach will consider whether it is just & reasonable to impose a new DOC.

An incremental approach when deciding DOC

Case

(Robinson v Chief Constable of West Yorkshire)

Old woman was knocked to the ground by a drug dealer in his escape from arrest. The court held that the police had a duty of care to the woman due to the circumstances, reaffirming the need for an incremental approach.

Decision in (Robinson)

(AO1)

DOC is imposed on Police in relation to acts of third parties provided those acts are a foreseeable consequence of acts by the Police.

Only regards Positive Acts!! No DOC is imposed from omissions by the police (so Hill is still good law).

Breach of a DOC

Definition (AO1)

A Breach of Duty occurs when the party owing the particular duty falls below the (objective) Standard of Care (SOC) that is required by the particular duty in question.

There are no degrees of breach - there is either a breach or not and D will not be penalised according to the degree of negligence shown.

Standard Of Care (SOC)

Definition (AO1)

What would the ‘reasonable and competent’ person in D’s situation have done. Lacking experience or skill is irrelevant.

(Objective)

The SOC starting point will be the reasonable person who does that job. Slightly higher than just reasonable people.

Who is the Reasonable Person (RP)

Definition (AO1)

The ordinary person performing the task competently e.g. reasonable driver / reasonable surveyor / reasonable doctor

Reasonable Person (RP)

Case

(Blyth v Birmingham Waterworks)

Flooding caused by extreme frost which dislodged a plug in a pipe No liability nothing could have reasonably been done to prevent the damage

Negligence

Definition (AO1)

Doing something a reasonable person (RP) wouldn’t do

OR

Not doing something a RP would do

3 Special Characteristics of the RP that might affect the degree of care expected from them

Definition (AO1)

1. Professionals

2. Inexperienced / Learner / Trainee

3. Age - Children

SOC - Professionals

Definition (AO1)

Professionals are judged by the accepted standards of members of their own profession as a whole i.e. a competent body of professional opinion such as the ‘WHO’. (Raised SOC)

SOC - Professionals

Tests (AO1)

1. Bolam Test

2. Bolitho Test

SOC - Professionals (Bolam Test)

Definition (AO1)

Where a number of different options are available to the professional, it is sufficient to show that there is no Breach of DOC where a substantial body of opinion within the profession would support the course of conduct in question

SOC - Professionals (Bolam Test)

Case

(Bolam v Friern Hospital)

C suffered from mental illness and was treated with electric shocks. C suffered broken pelvis from treatment. Two opinions surrounded the treatment, one saying to use relaxant drugs every time and one saying only when necessary. No breach as the hospital had followed one of two courses of action

SOC - Professionals (Bolitho Test)

Definition (AO1)

The professional must demonstrate that their actions are not only defensible by a responsible body of opinion, but also that the opinion itself is logical and capable of withstanding scrutiny. (This allows for development in medicine)

SOC - Professionals (Bolitho Test)

Case

(Bolitho v City & Hackney Health Authority)

A child suffered severe brain damage after a doctor failed to attend to her. The court ruled that the opinion must also be logical and capable of withstanding scrutiny. No Breach

SOC - Inexperienced / Learner / Trainee

Definition (AO1)

E.g. learner drivers, trainee doctors, trainee lawyers etc - are judged at the standard of the more experienced competent person. Specialists are held to a higher SOC than a Generalist.

SOC - Inexperienced / Learner / Trainee

Case

(Nettleship v Weston)

N gave W driving lessons. On third lesson, W hit a lampost which resulted in N being injured. Decided that W should be judged at the standard of a ‘competent driver’.

SOC - Sporting events

Definition (AO1)

SOC is the ordinary standard depending on whether it is a professional or ameteur. Professionals are assumed to be more knowledgeable of potential risks.

Referees owe a DOC to protect players from unnecessary harm.

Sporting authorities owe a DOC to provide proper medical facilities to deal with sporting injuries.

SOC - Sporting referee

Case

(Vowles v WRU)

Judged by what the reasonably competent referee would have done

Sporting authorities

Case

(Watson v British Boxing Board)

The case involved a failure to provide adequate medical facilities during a boxing match, leading to injury.

SOC - Age (Children)

Definition (AO1)

The SOC owed is that of a reasonable person of the same age as the D at the time of the incident.

(The law expects ‘young’ children to be surpervised)

SOC - Age (Children)

Case

(Mullin v Richards)

Two 15yo girls were play fighting with plastic rulers. One snapped and the fragment entered M’s eye and she lost all useful sight in that eye. No Breach. R only had to meet the standard of a 15yo schoolgirl and not a reasonable adult.

Breach - Risk Factors

Definition (AO1)

The following Risk Factors (assessed by the courts) can affect the SOC by raising or lowering the SOC expected:

1. Characteristics of the Claimant

2. Size of the Risk

3. Precautions taken

4. Public Benefit

Breach - Characteristics of the Claimant

Definition (AO1)

Foreseeability: Where D knows of the special characteristics of the Claimant which may make them vulnerable (age of C or physical vulnerabilities which means D will be expected to take greater care).

Breach - Characteristics of the Claimant

Case

(Paris v Stepney Borough Council)

P known by employers to be blind in one eye. Employer failed to provide adequate safety measures, leading to P's injury.

(Walker v Northumberland County Council)

Employee with known mental health issues; employer failed to provide necessary support, resulting in injury.

Breach - Size of the Risk in relation to the degree of Potential Harm

Definition (AO1)

Foreseeability - There is no obligation on the D to guard against risks other than those that are within his/her reasonable contemplation

‘The greater the risk of harm the greater the precautions are needed to prevent the harm’

(Objective)

Breach - Size of the Risk in relation to the degree of Potential Harm

Case

(Roe v Ministry of Health)

Patient was administered a spinal anesthetic that was contaminated, leading to severe injury. The court ruled that the hospital could not have foreseen the risk, as the contamination was not detectable at the time. No Breach

(Bolton v Stone)

Cricket ball hit passer-by over a 17ft high fence. Only went over the fence 6 times before in over 30 years. No Breach as low risk

(Haley v LEB)

Blind man fell in trench after workers did not put barriers up. Court found a breach of duty as the risk / potential harm was very high

Breach - Precautions taken (Need only be reasonable)

Definition (AO1)

‘Precautions taken need only be reasonable in relation to the size of risk of harm. There is no duty to eliminate all risks’

Ds are only required to take practical steps to prevent foreseeable harm based on the circumstances of the case, balancing the level of risk against the precautions taken.

Breach - Precautions taken (Need only be reasonable)

Cases

(Latimer v AEC)

An employer faced wet conditions and took reasonable precautions like using sawdust to reduce slipping hazards. The court found no breach as the actions were proportionate to the risk. No Breach

Breach - Benefits of taking the Risk

Definition (AO1)

The court balances risk with Public / Social benefit of taking a risk i.e. in an emergency, a greater risk can be accepted and a lower SOC applied.

Breach - Benefits of taking the Risk

Case

(Watt v Herefordshire DC)

In this case, a firefighter injured while responding to an emergency was found to have the benefits of the action outweigh the risks taken, illustrating that in urgent situations, a higher level of risk may be justified.

Causation Of Damage (AKA Damage)

Definition (AO1)

C must prove that D’s act or omission actually caused the Damage (& that the damage is not too remote). The personal injury or property damage must be :

1. Caused by the Breach of Duty (Factual Causation)

   &

2. Damage must not be too remote (Legal Causation)

Do not confuse with ‘Damages’ (Compensation)

Causation Of Damage - Factual Causation

Definition (AO1)

D’s conduct must be a necessary element in a set of conditions in order for the harm to have happened.

“But For” Test - Would the C not have suffered harm ‘but for’ the D’s negligence

Causation Of Damage - Factual Causation

Case

(Barnett v Chelsea & Kensington Hospital)

In this case, a man died from arsenic poisoning after being refused treatment at a hospital. Hospital's negligence was not the factual cause of death, as he would have died regardless of treatment.

Causation Of Damage - Legal Causation: Remoteness of Damage

Definition (AO1)

C’s injury was a reasonably foreseeable consequence of D’s Breach.

The type of harm must be RF but not the extent or the way in which it occurred.

(General kind of damage not the specific type of damage must be RF i.e Fire or Water damage.)

Causation Of Damage - Legal Causation: Remoteness of Damage

Cases

(The Wagon Mound) - Type of damage must be RF

D spilt oil onto water, which ignited a fire causing damage to a nearby property. Damage was not RF due to the nature of the initial spill.

(Hughes v The Lord Advocate) - Way in which harm occurred is irrelevant

Boy suffered burns from falling in a manhole with a paraffin lamp. Type of damage (fire) is RF where paraffin lamps are left out. Irrelevant that the way harm occurred was not RF

Causation Of Damage - Egg Shell Skull

Definition (AO1)

“Where a foreseeable injury is caused to C and this triggers an unforeseeable reaction due to the C’s pre-existing vulnerability, D is liable for the full extent of the loss.”

“Take your victim as you find them” applies where the particular vulnerability / weakness cannot be seen.

(This is an exception to the rule on foreseeability)

Causation Of Damage - Egg Shell Skull

Case

(Smith v Leech Brain)

D liable for consequences of work accident involving a burn on lip (foreseeable) which triggered underlying cancerous condition (unforeseeable). D was liable for all the consequences

Do not mix up with Paris which belongs in Breach with SOC!!!

Causation Of Damage - Breaking the Chain

Definition (AO1)

Even where a breach is proven and causation in fact established the D may still not be liable if the chain is broken. i.e from a Subsequent intervening Act (Novus Actus Interveniens). This will break the chain as long as it is not C’s own conduct!!