negligence

Negligence- defined in blyth v birrmignham as failing to do something or act in a way that a reasonable person would do or doing something that a reasonable person would not do (donoghue v stevenson) therefore it can either be an act or omission 

To establish negligence the claimant must prove on the balance of probabilities that 

Defendant owed duty of care to the claimant 

Defendant was in breach of duty 

Damage was caused to claimant by the breach of duty which was not too remote 

Duty of care

The claimant must proved that defendant owed them a duty of care 

Can be established in 1 of 2 ways 

Robinsons approach comes from robinson v CC west yorkshire police saying that a judge should first look at existing precedents and base it on previous cases when deciding when duty of care exists 

There are some established precedents 

Consumer v manufacturer- Donoghue v stevenson 

Doctor v patient - bolam v barnet 

Driver v other road users - nettleship v Weston Road Traffic Act 1988 

If there is no existing precedent then the Caparo test is used 

There are 3 sections of the caparo test 

Was the harm reasonably foreseeable - must be proved that it is reasonable that Ds act or omission would cause harm- Kent v Griffiths 

Was there sufficient proximity - d and c must be in close proximity and there must be a closeness which can be physical closeness like time and space or a legal relationship like manufacturer and consumer 

Was it fair just and reasonable - this is a policy-based decision and takes into account the best interest of society when deciding whether to impose it, based on decisions concerning flood gates which is a concern because if a new duty were to be created this may open floodgates to large number of claims in the future.

It was not fair just and reasonable in hill v chief 

It was fair just and reasonale in capital v hampshire CC

Once its established that d owes c a duty of care it must be proved that d has breached that duty of care 

There are 2 key parts 

Comparing ds conduct with the standard care expected from a reasonable person 

Considered various risk factors which may raise or lower that standard of care 

The reasonable person test - defendant will have breached their duty of care if they failed to act in a way which a reasonable person would or acted in a way which a reasonable person would not (blyth v birmingham)

If d acted in a way that a reasonable person would there is not breach - glasgow corporation v muir 

As the test is objective it ignored any particular characteristics of the actual defendant - nettleship v weston 

There are some characteristics relevant such as 

Children- they are judged against the same standard of a reasonable standard with the same age - mulins v richards

Amateurs- judged against the same standard of reasoanlbe amateur doing the same task- wells v cooper 

Professionals are judges against the standard of a reasnalbe expert in the same field- bolam b barnet

Risk factors-

In order to estazblih whether they breached their duty of care we need to look at risk factors which may raise or lower the standard of care expected 

Probability of harm, if the probability of harm is low then this may lower the standard of care (bolton v stone)

If the probability of harm is high this may raise the standard of care ( Haley v leb)

Seriousness of harm-(paris v stepney)- if the claimant is vulnerable this may raise the standard of care

Cost and practicality of precautions-(Latimer v AEC)-the level of precautions will balanced against the risk 

Potential benefit (social utility)- (Day v High performance)- standard of care maybe reduce if there is a greater social benefit 

Unknown risk-(roe v minister of health)-if the risk of harm id not know there is no breach of duty

Damage- damage in this context means the loss suffered by the claimant both factual causation and remoteness must be proved in order for a negligence claim to succeed.

Factual causation - but for test,but for ds act or omission would c have suffered

Barnet v chelsea- no factual causation 

Chester v afshar- factual causation 

Intervening events- new intervening act by the claimant or a third party can break the chain of causation - Knightley v Johns 

Remoteness-claimant can only claim for types of loss that were reasonably foreseeable - wagon mound 

Too remote-hughes v lord advocate

Thin skull ruel- if the type of damage id reasonably foreseeable but it is more serious because c suffers from an existing condition d is liable for all the subsequent consequences- smith v leech