Negligence

What is the Burden of Proof on

Balance of Probabilities

Negligence Definition

Defined in which case

Blyth v Birmingham Waterworks

- Failing to do something the Reasonable Person would do or doing something which the Reasonable Person would not do

- Can be act or omission

3 Requirements for Negligence

1. Duty of Care - Caparo test

2. Breach - Bolam test

3. Damage - Causation + Remoteness of Damage

Barnett, Wagonmound

Donoghue v Stevenson

Neighbour Principle

- You must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour

What 2 part Duty of Care test did Anns v Merton set out (Anns Test)

1. Sufficient Legal Proximity between parties

2. Fair and Just to Impose such Duty

Caparo Test

Test for Duty of Care

1. Was damage and harm reasonably foreseeable (Kent v Griffiths)

2. Sufficient Proximity between parties (Bourhill v Young)

3. Is it Fair and Just to impose such duty (Hill v Chief)

What is the test for a Duty of Care

Caparo Test:

1. Was damage or harm reasonably foreseeable - Kent v Griffiths

2. Sufficient proximity between parties - Bourhill v Young + McLoughlin

3. It is fair and just to impose a duty - Hill v Chief Constable of West Yorkshire

Robinson v Chief - Only used when there is not previously established duty

Caparo test - Was Damage or Harm reasonably foreseeable Requirement

Depends on Facts of the case

Kent v Griffiths - Held to be Reasonably Foreseeable C would suffer further illness if ambulance did not arrive quickly

One Problem with "Was damage reasonably foreseeable"

What if D is vulnerable (Mental illness, Minor, Disabled)

Caparo test - Sufficient Proximity between parties Cases

1. Bourhill v Young - No Duty as C was just a bystander, not a participant/witness + damage was not foreseeable

2. Mcloughin v O'Brien - Duty was Owed as she saw the immediate aftermath + had a close relationship with victims

- Psychological Harm was also Reasonably Foreseeable

Caparo test 3rd Requirement

Case

Is it Fair and Just to impose such duty

Hill v Chief Constable of West Yorkshire - Held not to be fair and just for police to owe duty to the general public

Is it Fair and Just to Impose such duty Problem

Robinson v Chief Constable

Robinson v Chief Constable

Caparo test is not a Universal Test

Should only be used in unique cases with no previously established Duty of Care

Bolam test

Test for a Breach of Duty

1. Does Ds conduct Fall Below the Standard of the Ordinary Competent Member in that Profession?

2. Is there a Substantial Body of opinion within the profession that would Support Ds actions?

How is a Breach of Duty established

How are people judged 3 cases

Bolam 2 Part test

Nettleship v Weston - Learners Judged by standard of the more experienced person

Vaughan v Menlove - The Test is Objective, the fact D had used his best judgement was irrelevant

Mulllin v Richards - Children judged against Standard of a Reasonable Person of the Same Age

5 Factors that may Raise/Lower Standard of care:

1. Ds special characteristics - Paris v Stepney Borough Council

2. Risk being very:

Small - Bolton v Stone

Big - Haley v London

3. Latimer v AEC Ltd - Cost + Effort of precautions is Balanced with Level of Risk of harm

4. Risk being Unknown - Roe v Minister of Health

5. Public benefit of risk/Emergency - Day v High Performance Sports

Day v High Performance Sports

In Emergencies/Situations of Public benefit, Greater risk can be taken + Lower standard of care can be accepted

Bolton v Stone

If risk is Small, Standard of Care is Lowered

Reinforced in Haley v London

Latimer v AEC Ltd

Cost + Effort of precautions is Balanced with Level of Risk of harm

Roe v Minister of Health

Cannot be a Breach of duty if risk of harm is unknown

Paris v Stepney Borough Council

Special characteristics can increase Standard of care eg being blind in one eye

What must be proved for the Damage Requirement

1. Causation - Factual + Legal

2. Damage is not too Remote - The Wagon Mound + Bradford v Robinson

How is Factual Causation established

But for Test

Illustrated in Barnett v Chelsea

Legal Causation

How can this be disproven

By proving Intervening Acts broke Chain of Causation

1. Daft act from C - McKew v Hollands

2. Act of Nature - Carslogie Steamship v Royal Norwegian Gov

3. Third party - Knightly v Johns

Remoteness of Damage

3 Cases

2nd part of Damage requirement of Negligence

The Wagonmound - Injury/Damage must be Reasonably Foreseeable

Bradford v Robinson - Type of injury must be foreseeable, not the precise way it may happen

Smith v Leech - If injury is foreseeable but made worse by a pre-existing medical condition, D is liable for the full extent of harm

The Wagonmound

Injury/Damage must be Reasonably Foreseeable

Remoteness of Damage Requirement

Smith v Leech

Eggshell skull rule

If injury is foreseeable but made worse by a pre-existing medical condition, D is liable for the full extent of harm

Bradford v Robinson

Type of injury must be foreseeable, not the precise way it may happen

Remoteness of Damage

Anns v Merton test for Duty of Care

1. Sufficient Proximity

2. Are there any Policy reasons a DoC should not exist eg public interest, too burdensome

Development of Duty of Care

1. Donoghue v Stevenson - Neighbourhood Principle

2. Anns v Merton 1978 - Sufficient proximity/foreseeability + Policy reasons

3. Caparo v Dickman (1990)

4. Robinson v Chief Constable - Caparo is not Universal

Duty of care evaluation points

Causation

1. Factual - But for Test - Barnett v Chelsea & Kensington

2. Legal - Intervening acts

   • Daft Act - Mckew v Hollands

   • Act of Nature - Carslogie

   • Third party - Knightly v Johns