negligence

Negligence was defined in the case of Blyth v Birmingham Waterworks Co. by Baron Alderson as 

“failing to do something which the reasonable person would do or doing something which the reasonable person would not do.”

Negligence can be a positive act or an omission which causes injury to another person or damage to their property. In a successful claim, C must prove D owed them a duty of care, breached that duty and the breach caused reasonably forseeable injury or damage.

In civil law, claimant sues the defendant. The standard of proof is on the balance of probabilities (more likely that not that D’s fault caused the injuries or damage) and the burden of proving this fault and providing evidence is on C. 

The phrase “opening the floodgates” means that if the courts hear a trivial case (such as a minor injury), then many other trivial cases will "flood” the courts.

The courts whom hear these cases are:

County Court, High Court, CoA and UKSC. 

Legal aid is only available in certain cases.

DUTY OF CARE

Neighbour principle- who is my neighbour in law : “Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected when I am directing my mind to the acts or omissions in question” - Lord Atkin, Donoghue v Stevenson. 

  • Grant V Australian Knitting Mills 1936 applied this test, and claimant won the case

Then in Home Office v Dorset Yacht co, it was decided that an incremental approach should be adopted, as it was said “it ought to apply (d v s) unless there is some justification or valid explanation for its exclusion” (Lord Reid). An incremental approach is where the law of negligence, particularly the DOC, develops gradually through the courts by analogy to established principles in existing cases rather than through universal rules. 

Then, in the case Anns v Merton LBC, DOC developed again. It referred to a two-stage test:

  • there must be sufficient legal proximity between the parties

  • unless there were policy reasons for not doing so

Next, in 1990 a landmark case was heard, Caparo v Dickman. From this case, the HoL set out a three stage test as to whether D owes C a DOC:

  • was the loss (the harm,damage) reasonably forseeable? KENT V GRIFFITHS 2000 

  • was there proximity between the claimant and the defendant? BOURHILL V YOUNG

  • and is it fair,just and reasonable to impose a DOC on D? HILL V CCWY 1990

Kent v Griffiths- C suffering ashtma attack, ambulance called, reassured from control centre but ambulance stil failed to arrive in reasonable time, C suffered respiratory arrest. I was reasonably forseeable that if an ambulance took unreasonable time to reach the patient, greater injury would be caused. LIABLE

Bourhill v Young- C heard an accident as she was getting of tram, caused by motorcyclist who died, C approached scene, suffered shock and later gave birth to a stillborn baby, sued motorcylist’s parents. HoL held that D could not anticipate that if he was involved in an accident it would cause mental injury to bystander- wasn’t proximate to her and did not owe her a DOC.

Hill v Chief Constable of West Yorkshire- Yorkshire ripper had been attacking and murdering women, C’s daughter was his last V before he was caught, by time of her death police had enough proof to arrest him but failed to do so. C sued as police allegedly owed V a DOC. Not sufficiently close for police to owe DOC and not fair, just and reasonable for police to owe a DOC to general public/ someone unknown to them, they knew killer would strike again but didn’t know V (had no way of knowing)

  • could have lowered police standards if they were sued as police may have diverred resources and attention away from the prevention of crime

  • also, police HAD “immunity from suit” (and other public bodies like education authorities and prison service) which mean that they had immunity from being sued due to their limited resources and the fact they are only doing there job.

Then, DOC developed again in the case Robinson v CC of WY when police knocked over an elderly woman in a drug-chase. She won in UKSC. Lord Reed explained that the Caparo test was never meant to apply in every single negligence case. From this, it was held that when there is already an established DOC, like driver and passenger, judges should follow that. But if it is a novel (new) case and there is no precedent, judges should follow Caparo and that way the law developes incrementally using analogous cases.

There is no blanket of immunity and this was followed through with medical receptionists in Darnley v Croydon NHS trust.

  • D told C (who had a head injury) he would have to wait hours before he was seen, however D made a mistake as because he had a head injury, he should have been seen imminently (within 30 mins to an hour). C didn’t want to wait in hospital as he would rather be at home, and as a result he suffered permanent brain damage. C won. 

Sumner v Colbourne- held that a landowner does not owe a duty of care to road users for obstructed sightlines caused by vegetation on their property, as long as that vegetation is not on or over the highway itself.

Cases where a DOC is established:

Manufacturers to consumer (D V S)

Employers to Employees (Wilson and Clyde Coal ltd v English)

Doctors to Patients

Road users to other road users/ passengers (RTA 1988 and Nettleship V weston)

BREACH OF DUTY

objective standard- Has D fallen below the standard of care expected?

objective test- What would the reasonable competent person in D’s situation had done?

The reasonable person : Vaughan V Menlove:

D’s haystack caught on fire and burnt C’s cottage due to poor ventalation. D had been warmed on numerous occassions that this would happen if he didn’t move the haystack. D argued he used his best judgement and did not forsee a risk of fire. Court held his judgement was not enough. He should be judged by the standard of a reasonable man. 

The reasonable learner : Nettleship V Weston:

D was a learner and her friend (C) agreed to teach her how to drive. C checked insurance. D crashed and C fractured his knee. D argued that the standard of care should be lowered for learner driver and also raised defence of volenti non fit injuria in that agreeing to get in the car knowing she was a learner, C had voluntarily accepted risk. Held that a learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti didn’t apply as he checked insurance cover which demonstrated he did not waive any rights to compensation. His damages reduced to 50% under law reform (contributory) act 1945, as he was also at fault.

The reasonable child is assessed as someone of a child at that age: Orchard v Lee:

Some children were playing tag in the playground, one boy who was playing ran straight into a teacher causing her personal injury. Court took into consideration the standard of a reasonable thirteen year old boy.

The reasonable professional such as a doctor or dentist- whole different set of rules.

Bolam- C was undergoing ECT treatment for mental illness. He lay on a bed but wasn’t strapped down -when a power voltage surged through him, he slipped and hurt his back. Dr had not provided relaxant drugs. Bolam sued. Bolam test:

  • Did they fall below the standard of competence expected of them as a medical professional?

  • Is there a body of medical opinion that would support action taken by the medical professional?

Bolitho- Patrick Bolitho (2) went to hospital with a bad cough. A dr didn’t see him urgently. He died. Mother sued. Her child should have been intubated. Dr said they would not have intubated and an expert agreed- intubation is so invasive. HoL held there was no breach. Where evidence is given that other practitioners would have done what D did, then as long as this method was based on logic and was defensible (this is what changed/developed bolam case) then it could be argued that there was no breach.

Vowles v WRU- What is expected of the reasonable competent person will vary depending on the circumstances. As D in this case was a rugby referee, he was judged by what the reasonably competent referee would have done.(SOC varies)

Mullins v Richards 1998- Two 15 year old schoolgirls were fencing with plastic rulers. One of the rules snapped, and a splinter hit one of the girls in the eye. Held the appropriate test was whether the reasonable competent 15 year old girl would have realised that fencing with rulers gave rise to a real risk of injury. They decided that the reasonable competent fifteen year old would not have been aware of this and so there was no breach of duty.