Negligence

Negligence

Define in (Blyth) as “failing to do something which the reasonable person would do or doing something which the reasonable person would not do”. The elements of negligence are:

• A duty of care owed to the claimant

• That the defendant was in breach of duty

• That the claimant suffered damage as a result

Duty of Care

A duty of care can be established in 2 ways:

• By applying existing precedent or a statutory obligation (the Robinson approach)

• Where no previous precedent exists, applying the Caparo test.

The Robinson approach

In Robinson v CC West Yorkshire Police (2018), the Supreme Court emphasised that a judge should first look to existing precedent (or a statutory obligation) when deciding whether a duty of care exists.

Examples of the Robinson approach

• Manufacturer and consumer – Donoghue v Stevenson

• Doctor and patient – Bolam v Barnet Hospital

• Drivers and other road users (including pedestrians) – Nettleship v Weston, Road Traffic Act 1988

• Employer and employee – Paris v Stepney

• Instructor and learner – Day v High Performance Sports

• Teacher and student – Simonds v Isle of Wight Council

• Parent and child

Donoghue v Stevenson

C was bought a bottle of beer by a friend that had a dead snail in it. C fell ill but couldn’t claim as her friend bought the drink.

The neighbour principle established by Lord Atkin: “You must take reasonable care to avoid acts or omissions which you can reasonable foresee as likely to injure someone who is closely and directly affected by your act”

Caparo test

In Novel situations, the 3-part Caparo test is applied for determining new duty situations

1. Was the harm reasonably foreseeable

2. Was there sufficient proximity

3. Is it fair, just and reasonable to impose a duty

Robinson v CC West Yorkshire

Officers knocked over a lady when trying to arrest a suspect. Court held that police officers owed a duty to passers-by based on the circumstance and that police officers were not immune from negligence claims

Reasonably foreseeable

It must be foreseeable that D’s act or omission could cause harm to someone, this is an objective test. It asks whether a reasonable person in the defendants position would have foreseen harm

Kent v Griffiths

It was reasonably foreseeable that C’s condition would worsen if the ambulance arrived 30 minutes late and had no good reason as to why

Topp v London Country Bus

A driver of a minibus left the bus unlocked, with the key in it. It was not foreseeable that the bus would be stolen and that the driver would run someone over

Was there sufficient proximity

Proximity refers to the closeness between the claimant and defendant. This can be either in the physical sense or it could be created through a legal relationship

Bourhill v Young

A pregnant woman miscarried after hearing a motorcycle accident. there was not sufficient proximity in either sense in time or space

Mcloughlin v O’brien

A mother arrived at the immediate aftermath of a serious accident involving family members. There was sufficient proximity

Fair, just, and reasonable

This is a policy-based decision, where the judge takes into account the best interests of society when deciding whether to impose a duty.

Hill v CC West Yorkshire

Not FJR to impose a duty on police for failure to catch killer sooner- the threat of being sued could restrict investigations.

Capital & Counties PLC v Hampshire CC

Although firefighters wouldn’t usually be liable for failing to put out a fire, it was FJR to impose a duty when one made the damage worse by not turning off sprinklers

Breach of duty

Breach of duty is made up of 2 key parts:

• Comparing D’s conduct to that of a reasonable person

• Considering various risk factors which may raise or lower that standard

The reasonable person test

A defendant will have breached their duty if they have done something a reasonable person would not have or not done something a reasonable person would have (Blyth v Birmingham waterworks). If D acted as a reasonable person would have done, then there is no breach (Glasgow Corp v Muir)

Nettleship v Weston

A learner driver crashed on her third lesson, injury the instructor. D’s inexperience was not relevant, and she was judged against a reasonably competent driver

Instances where characteristics will be relevant

• Children, where the standard of care is that of a reasonable child (Mullins v Richards)

• Amateurs can be judged against other amateurs if it is a task a reasonable homeowner might carry out (Wells v cooper)

• Experts will be judged against competent experts in the same field (Bolam v Barnet)

Risk factors- Probability of harm

If the probability of harm is low D will not be expected to take as much care to guard against a risk. If there is a higher risk of harm, a higher standard of care is to be expected

Bolton v Stone

where the likely-hood of a cricket ball being hit out of the ground and injuring a passer by was very low, there was no breach of duty by the cricket club as they had taken precautions

Haley v LEB

Workmen propped up a hammer to warn people of a hole in the road. the road was frequently used by blind people so when a blind man fell into the hole, there was a breach of duty due to the high probability of harm

Risk factors- Seriousness of harm

If the potential harm could be serious, e.g because the claimant is especially vulnerable, the standard of care might be raised. The reasonable person would take greater precautions than normal

Paris v Stepney

The claimant was a welder who had already lost one eye, his employer was therefore under a higher duty to provide protective goggles to him because the risk of him becoming blind was greater

Factors - precautions (Latimer v AEC)

C suffered injury when he sipped on a wet floor. The court decided that D had taken sensible precautions by laying sawdust on the floor. To eliminate risk completely would have been disproportionate

Factors- Social utility (Day v HPS)

C had frozen when climbing and needed rescue, the rescuer caused the claimant to fall and be injured. in this case, the benefit outweighed any potential risk so the standard of care was lower

Factors - Unknown risks (Roe v Minister of health)

If the risk of harm is not known, there can be no breach of duty. in (Roe) C was patient who was paralysed by a contaminated anaesthetic. there was no known risk so there was no breach.

Damage

Damage means the loss suffered by the claimant as opposed to damages which is the payment of compensation to a successful claimant. Both factual causation and remoteness must be proved

Factual causation

Decided by the but for test similar to crime

Barnett v Chelsea & Kensington hospital

D, a hospital doctor, failed to diagnose B’s arsenic poisoning and instead sent him home where he died. but for this action B would have died anyway, no causation

Chester v Afshar

Doctor failed to warn patient about risks involved in back surgery. But for doctors’ failure to warn, C would not have had the surgery and suffered injury

Knightley v Johns (intervening acts)

D’s negligent driving caused an accident in a tunnel. The arriving officer sent a colleague to close the tunnel which caused another accident. The conduct of the officer was so unreasonable that it broke the chain of causation

Remoteness

The claimant can only claim for types of loss that are reasonably foreseeable result of D’s breach. If a loss is not reasonably foreseeable then it is not recoverable

The wagon mound

D’s negligently spilled oil in the water of a harbour that later ignited causing fire damage to the dock. The oil pollution was foreseeable but the damage by fire was too remote

Bradford v Robinson Rentals

C got frostbite after driving a van from Exeter to Bedford in the middle of a hard winter. the van had no heating. Injury from the cold was foreseeable. It was irrelevant that the injury occurred in a more severe way than expected

Hughes v Lord advocate

D left unguarded an open manhole surrounded by lamps. A young boy knocked one of the lamps into the hole and was burned by the explosion. Claim succeeded as injuries from lamp were foreseeable even if what actually happened was not.

Smith v Leech brain (thin skull rule)

C, who had a rare cancer gene was burnt by molten metal at work that brought on a cancer and he eventually died. The burn was foreseeable and D had to take C as he found him, making him liable

Defences to negligence (Contributory negligence)

This is where the defendant alleges the claimant has partly caused the damage. it is a partial defence both sides are to blame so it reduces compensation

Froom v Butcher

C’s head injuries were held to be because he did not wear a seatbelt and his damages were reduced by 20%. If wearing a seatbelt would have made no difference then no deduction can be made

Sayers v Harlow UDC

A council was liable in negligence when C got trapped inside a public loo. C’s damages from trying to escape were reduced because she tried to escape by climbing a toilet roll holder

Defence to negligence (consent)

Where the claimant has voluntarily agreed to a risk of harm with full knowledge of the risk, then there can be no claim. Consent or volenti is a complete defence.

Morris v Murray

C and D decided to take a flight in a light aircraft that later crashed, killing D and injuring C. C could not claim as he had voluntarily assumed the risk of injury by accepting a flight

Ogwo v Taylor

C was a fireman who was injured from a negligently set fire. C could not consent to this situation as they had no choice but to accept the risk.

Remedies- Special damages (pecuniary)

• Pre-trial expenses (loss of earnings or expenses up to trial date)

• Loss of property (if destroyed, this will be market value, if damaged this will be repair cost)

Remedies- General damages

• Future losses (future medical care and personal assistance)

• Pain and suffering (must be appreciated by claimant the value)

• Loss of amenity (loss of things C used to enjoy)

• Specific injuries (Claim a set amount for the injury itself, e.g loss of a leg)

Types of compensation

Damaged are either lump sums (only once payment) or structured settlements (payment over a specific period or for life)