Negligence
The concept of liability in negligence
Negligence: failing to do something which the reasonable man would do or doing something the reasonable man wouldn’t do.
Therefore you can be negligent by an act or omission.
Duty of Care
There must be a legal relationship between the parties. The courts originally created something called the neighbourhood principle.
Negligence: failing to do something which the reasonable man would do or doing something the reasonable man wouldn’t do.
Therefore you can be negligent by an act or omission.
In 1990 the neighbourhood principle was replaced by the Caparo test.
Caparo: Three things must be proven to establish a duty of care, firstly was the damage/harm reasonably foreseeable, is there a sufficiently proximate relationship between C and D, and lastly, is it fair, just and reasonable to impose a duty?
However, this was then replaced in 2018 by the Robinson test. Caparo only tends to be used now in new scenarios.
Robinson: The Caparo test need only be used where there is no established duty of care
Examples of established duties: teacher-student, doctor-patient
Breach of Duty
Once established that D owes C a duty, it has to be decided if D broke that duty
Objective breach test: Has D behaved in a way that an ordinary reasonable person in their position would have done, if not D has broken their duty of care.
Bollam: Professionals are judged against the standard of ordinary competent people in that same profession
Nettleship: Lack of experience is not a relevant characteristic for the reasonable person so learners are compared to reasonably qualified individuals
Mullin: Age is a relevant factor so children are judged against the reasonable child of that age
→ Risk Factors
In order to see if D acted reasonably the court has to consider how risky their actions were and whether they should have taken any extra precautions, we then have to consider the following:
- Was C vulnerable?
- How big was the risk?
- What was the cost of precautions?
- Was D aware of the risk at the time of the incident?
- Was there any public benefit to taking the risk?
→ Vulnerable Victims
Paris: The more vulnerable C is the more care D should’ve taken
→ Size of the risk
Bolton: The higher the risk, the more care should be taken
→ Cost of Precautions
Latimer: keep costs proportionate, if there is a low risk then there’s no need to spend a lot
→ Knowledge of the risks
Roe: No liability for unknown risk
→ Public Benefit
Watt: greater risk can be taken if there’s greater public heed, like in emergencies
The remoteness of damage & causation
Once a duty has been established and it was breached, the claimant has to prove that the breach caused the damage.
Causation
There must be a ‘chain of causation between D’s breach of duty and the damage suffered by V. D’s breach of duty must’ve been the factual and legal cause of the harm
Factual Causation
Barnett: confirmed that courts must apply the ‘but for test, but for D’s act/omissions would the harm still have occurred
Legal Causation
The claimant must prove that there are no INTERVENING ACTS that break the chain
must apply the test of whether the intervening act was ‘reasonably foreseeable, if it was D is the still the significant cause and legal causation is proven
Remoteness of damage
the injury/damage must’ve been ‘reasonably foreseeable’
the wagon mound: was not liable, the fire wasnt foreseeable