Negligence Problem Question template PDF

Preview

Summary

Negligence Problem Question ...

Description

Negligence Problem Question Template Introduction: Identify who could be liable in negligence, what order I am going to address them in. Remember to use IPAC – issue, principle and authority, application to the facts and conclusion, may need mini ipacs within sections

1. Duty of Care  For a defendant to be negligent, they need to have owed a Duty of care to the claimant. Can normally done by demonstrating an established duty scenario Established duty scenarios: -

Car drivers, learner drivers  Nettleship v Weston, individual circumstances taken

-

into account, hypokalaemia shock  Mansfield v Weetabix Doctor/patient  Wilsher v Essex, Bolan test, Bolitho v City and Hackney HA Children  Mullins v Richards Sporting events  Woolridge v Summer Acts and Omissions General rule where there is an omission there is no duty to act – Smith v Littlewoods + Stovin v Wise

Exceptions  -

Control exercised over C by D Reeves v Commissioner of Police

-

D assumes responsibility for C’s welfare Costello v CC of Northumbria Police Creation of or adoption of risk  Capital and Counties Plc v Hampshire CC Acts of Third Parties

-

Again, general rule no duty owed  Smith v Littlewoods

Exceptions  -

Where there is a special relationship between D and T, such as a relationship of control or supervision  Home Office v Dorset Yacht

-

Failure to take steps to stop a danger created by D which T took advantage of  Stansbie v Troman, Mitchell v Glasgow City Council Where D was in a position of control over T, and should have foreseen the likelihood

-

of T causing damage in close proximity Where D assumes a positive responsibility to safeguard C

 Police

-

Police owe a DOC for negligent performance of day to day activities, treated the same as any other negligence case  Rigby v Chief Constable Northamptonshire No DOC where C suffers loss because police made an error in judgement when investigating  Hill v CC west yorks, Michael v CC South Wales, Robinson v CC West Yorks

Incrementalism to established categories  If something is close to one of the established categories, use incrementalism like in Darnley rather than applying Caparo, the law is only willing to move beyond those situations on an incremental basis  accepting or rejecting a DOC in novel situations on an incremental basis Novel cases  Apply Caparo 1. Foreseeability of claimant – (time it happened and age of claimant) Roe v Ministry of Health, Mullins v Richards 2. Proximity – pregnancy board case 3. Fair, just and reasonable 4. Only take into considerations of policy on novel cases – James Bowen

2. Breach Kind of breach introduction:  Once the DOC has been established, breach needs to also be established  Breach will depend on the standard of care  Established in Blythe v Birmingham Waterworks – objective standard of the reasonable man  No allowance for the particular defendant doing their best  Nettleship v Weston First question which needs to be answered: what is the standard of care? (IPAC 1) This is influenced by external factors and attributes of the defendant  mention whichever ones could be relevant. External Factors 1. Likelihood of harm occurring – Roe v Ministry of Health, Bolton v Stone, test of foresight 2. Magnitude of Harm – risk of serious injury even if a small risk, makes SC higher Paris v Stepney BC, Haley v London Electricity Board

3. Relative Cost of Precautions – only expected to go to certain lengths, considers measures, ease and cost  Latimer v AEC Ltd 4. Social Utility of D’s Conduct – the fact that D is performing a socially useful function might help relax the SOC  Watt v Hertfordshire CC Attributes of Defendant 1. Unskilled defendants – no allowance made for inexperience – Nettleship v Weston, Wilsher v Essex 2. Children – SOC of a child of the same age Mullins v Richards 3. Defendant’s profession – SOC expected of the ordinary professional in that field e.g. Bolam test with influence of Bolitho 4. Non- professionals – who don’t claim to be won’t have professional standard of care  Phillips v William Whitley Ltd 5. D’s specialist knowledge – Baker v Quantum Clothing Groups 6. Sporting events – Woolridge v Summer Second question which needs to be answered: has the standard of care been met? (IPAC 2)  Have they met the standard of care on the balance of probabilities? - Res Ipsa Ioquitor -

1. Under defendant’s control 2. Cause unknown 3. Wouldn’t have occurred without negligence

3. Causation  Need to establish factual and legal causation Factual causation  typically the but for test: Barnett v Chelsea & Kensington Hospital Committee, would the

loss have occurred but for the defendant’s negligence?

 Claims that failed on causation – McWilliams v Sir William Arrol & Co, wouldn’t have worn the harness  Omissions can be said to have caused harm Divisible and Indivisible harm – applying but for test to determine whether a D’s tort caused the C harm produces different results if the harm in question was divisible or indivisible.  Divisible harm – but for D’s tort the harm suffered by the claimant would not have been as bad as it is at the moment Bonnington Castings v Wardlaw

 Indivisible harm – Williams v Bermuda Hospitals Board  Material increase in risk – McGhee, Chester v Ashfar, Hotson v East Berkshire, Wilsher v Essex  Fairchild, mesothelioma cases  Loss of chances – e.g. where A’s tort physically injures B, and as a result B’s chances of avoiding some further injury (such as arthritis) in the future are diminished  Damages for pure loss of chance only available where assumed responsibility, hedley byrne cases – Allied Maples Group Ltd v Simmons & Simmons  No claiming for pure loss of chance – Rothwell v Chemical and Insultating Co Ltd Legal Causation  Breaking the chain of causation 1. Omissions 2. Natural events 3. Foreseeability – not relevant to causation 4. Acts of third parties  Exceptions : Stansbie v Troman and Reeves v Commissioner of Police

4. Remoteness  Damage must be of a foreseeable kind  Damage was not too remote  Wagonmound no 1  test for remoteness of damage is that damage must be of a kind which was foreseeable. Once a damage is of a kind that is foreseeable the D is liable for the full extent of the damage even if the extent of the damage isn’t foreseeable  Tremain v Pike, Jolley v Sutton  Eggshell skull rule – a D must take their victim as they find them; if the claimant is particularly vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be expected in an ordinary person the D remains responsible for the full extent of the injury.  Smith v Leach Brain – death by cancer, example of the egg shell skull rule

+ Defences and damages and overall conclusion...