Tort- negligence notes PDF

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Negligence questionNegligence: what does the C have to show? Duty owed to C by D Breach of duty by the D i. standard of care required by the law Factual causation the breach of duty caused C’s injury/harm/loss Legal causation =remoteness of damage + break in the chain of causation (actus novus) Any ...

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Negligence question Negligence: what does the C have to show? 1. 2. 3. 4.

Duty owed to C by D Breach of duty by the D i.e. standard of care required by the law Factual causation the breach of duty caused C’s injury/harm/loss Legal causation =remoteness of damage + break in the chain of causation (actus novus) 5. Any defences available? (Complete defence of partial defence?) Introduction: Definition of negligence: “omission to do something which a reasonable man, guided upon these considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent or reasonable man would not do” –Blyth v Birmingham Waterworks Co [1856] *do definition in my own words + any defences? – Contributory negligence or volenti  AIMS = to compensate claimants for a negligent act of another person Duty: (of care in law) -No general liability for failure to act –Stovin v Wise. BUT may be duty for omissions where control over third party or foreseeable harm –Home Office v Dorset Yacht Co Ltd a. NO MENTION OF CAPARO -dealing with established/well recognised/well established precedent duty situation. - Donoghue v Stevenson – the neighbour principle (key aspects being foreseeability of harm + proximity of closeness of relationship) b. Duty of care on the facts of the foreseeable C= -Bourhill v Young= C has to be in the contemplation of the D as potentially suffering harm or D must have foreseeably anticipated harm coming to THIS PARTICULAR CLAIMANT (zone of danger and foreseeable risk) -If you identify potential C is NOT the foreseeable C = rule them out and do not mention again. Potential C’s…

Potential D’s… Duty of care situation? Are they foreseeable C’s? Breach: - Test- it is about standard of care. About the reasonable/reasonably competent person = what would they have done in this situation i.e. what was the standard of care in this situation. What did D in fact do? – Blythe v Birmingham Waterworks - It is an objective test/standard

Advantages and disadvantages About fairness (subjective – individual characteristics vs consistency and certainty) – Nettleship v Weston May be hard to be consistent if decisions were based off individual characteristics. Could then cause floodgates, too many claims in negligence Modified general test - Mullins v Richards = lower standard for children = reasonable child of that age - The professional professing to have a particular skill = the reasonably competent professional with that particular skill –Bolam v Friern Hospital Management Committee - D with a medical condition and unwell – Mansfield v Weetabix – If aware of condition = liable, if not aware = not liable Factors taken into consideration when seeking to define the standard of care required of the D: 1. 2. 3. 4.

Likelihood of harm --Bolten v Stone (rain, traffic, illness) Seriousness of harm –Paris v Stephney BC (simple fright- death) Social utility of D’s action --Daborn v Bath Tramways (life-saving surgery) Cost of precautions --Latimer v AEC Ltd --Watt v Herts CC (any options to avoid negligence possible?)

1. The more likely the injury, the more care is expected of D to prevent it. 2. The more serious the potential harm, the more care is expected of D to prevent it. 3. The more valuable socially or the more worthy the conduct, the more risk (up to a point) the court will allow D to take it. 4. The cheaper or easier the precaution is, the more the court will expect D to take it (money or effort). Overall courts balance all 4, NOT single one prevailing Tomlinson v Congleton =balancing act Factual causation:  Harm direct consequence of breach:  The but for test = but for D’s act would C have suffered injuries/harm? – Barnett v Chelsea & Kensington  On the balance of probabilities – more likely than not i.e. at least 51% chance that D’s breach of duty caused the harm.  If there is more than one cause = Wilsher v Essex = 5 potential causes – but for test failed – D not liable  Did D’s breach of duty materially contribute to C’s harm  More than one D – materially contributing – Holtney v Bringham & Cowan  Material increases in a risk of harm –Bonnington Castings v Wardlaw [1956] –McGhee v National Coal Board [1972]  Burden of proof is on the CLAIMANT Legal causation: (remoteness and novus actus)  Principle of remoteness of damage introduced by Wagon Mound No.1 – this overruled the case Re Polemis = D was liable for all direct consequences of their negligence, whether foreseeable or not.  Remoteness of damage = must be reasonably foreseeable that the KIND of damage would be caused – Jolley v Sutton  EXTENT of damage does NOT need to be foreseeable –Vacwell Engineering v BDH  C’s inherent weakness does not affect D’s liability  Breaks in chain of causation:  No liability for unforeseen intervening acts (break causation)

1. act of C –Mckew v Holland –C worsened their condition –Wieland v Cyril Lord 2. act of third party (where intervention not foreseeable or natural consequence of D’s negligence) --Knightly v Johns 3. natural event –Carslogie Steamship Co v Royal Norwegian Government  D must take their victim as they are (thin skull rule) – Dulieu v White [1901]  Also applies to their property, financial state – Great Lakes Steamship Co v Marple Leaf Milling Co Defences:  1. 2. 3.

Contributory Negligence (Law Reform Act 1945) Has C failed to take care of own safety? Is C’s failure to take care a contributory cause of their injuries? Is it just and equitable to reduce C’s damages because of their fault? (% of damages reduced)

--Froom v Butcher  1. 2. 3.

Voluntary assumption of risk/ volenti non fiat injuria Was C aware of the existence, nature and extent of risk? Did C voluntarily run the risk of d acting negligently? Was C’s injury an inherent risk or obvious danger of their actions?

--Morris v Murray RESULT = damages...