Negligence

Negligence

Means the heedless or careless conduct arising out of duty, the breach of that duty, and the damaged suffered by the person to whom the duty was owed.

Elements of negligence

1. The defendant must owe the claimant a duty of care
2. The defendant must breach that duty of care
3. That breach must cause damage to the claimant (causation)

Duty of Care principle

The neighbourhood principle by Donoghie v Steveson

The neighbourhood principle

This is where a duty of care will be owed wherever in the circumstances it is foreseeable that, if the defendant does not exercise due care, the claimant would be harmed

Caparo v Dickman- Threefold test

1. It must be reasonably foreseeable that the defendant's conduct will cause harm or loss to the claimant.
2. There must be a relationship of proximity between P and D
3. The situation must be fair, just and reasonable to impose a duty of care.

Breach of duty

* Once it has been established that a duty of care was owed, The court considers whether a reasonable man, placed in the defendant's position, would have acted as the defendant did.

Four elements under breach of duty

1. Likelihood of harm
2. The seriousness of the injury that is risked.
3. The importance of utility of the defendant's conduct
4. The cost and practicability of measures to avoid harm

Likelihood of harm

The greater the likelihood that the defendant''s conduct will cause harm, the greater the amount of caution required of him.

A case in which illustrates the likelihood of harm

Bolton v Stone

Bolton v Stone

Facts: the claimant was struck and injured by a cricket ball as she was walking along a public road adjacent to the cricket ground. She claimed that the defendant who was in charge of the ground had been negligent in taking precautions to ensure the ball did not escape from the grounds.

Held: There was a decent distance from the pitch to the road, the presence of a seven-foot-high fence, and infrequency in which balls have escaped, there was not a likelihood of harm.

The importance of utility of the defendant's activity

- The seriousness that of the risk created by the defendant's activity must be weighed against the importance of such activity

- Where the defendant's conduct has great social value, he may be justified in exposing others to risks that otherwise would have not been justifiable.

The Cost and Practicability of Measures to Avoid Harm

How costly and practicable it would have been for the defendant to have taken precautions to eliminate or minimize risk.

A case that illustrates Cost of measures to avoid harm

Latimer v AEC Ltd

Latimer v AEC Ltd

Facts: the Factory floor had become slippery after a flood and the occupiers did everything possible to, make the floor safe, short of closing the factory. A workman slipped and was injured.

Held: that the occupiers were not negligent. The court stated that 'in every foreseeable risk' it is a matter of balancing the risk against the measures necessary to eliminate it.

The Reasonable Man

- In determining whether the defendant's actions satisfied the standard of a reasonable man, the court will measure those actions against the conduct expected of a person of normal intelligence and who possess a degree of knowledge that a normal adult would possess.

Casuation

- The claimant must show that his loss was a result of the defendant's breach of duty.

Two considerations in causation

1. causation in fact
2. remoteness of damages in law.

Causation - the 'But for' Test

- Did the defendant's breach of duty in fact cause the damage.

-If the damage had not happened but for the defendant's negligent act, then that act will have caused the damage.

Barnett v Chelsea and Kensington Hospital Management

Remoteness of Damages

- The basic rule is that the defendant will be liable only those consequences of his negligent act which are not too remote in the law.