Negligence

Negligence

1. Duty of Care

   • Caparo v Dickman
     • Damage must be foreseeable
     • Proximity of relationship
     • Fair Just and Reasonable
     • Incremental Steps - Sutherland Shire Council v Heymen
       • Incrmentally OR analogy
         • close analogy / incremental step to impose a duty in novel situations, but where it is similar
           • Watson v British Boxing Board of Control
   • 3rd Parties
     • West Brom FC v El-Safty
       • Dr's responsibility is to his patient, not Club (employer)
     • White v Jones
       • Duty of care for solicitors to prepare wills within reasonable time - CONTRACT/assumption of responsibility
         • Marc Rich & Co - NO DUTY = Confused law - Owed no duty to owers of loss cargo
           • Both cases show a loss was foreseeable
     • Goodwill
       • Man vesectomy
         • No duty owed to woman as woman is only X
       • McFarlane
         • Man Vesectomy
           • Can claim in respect of pain and suffering, but not costs to raise
   • Emergency Services
     • Hill v Chief Constable of West Yorkshire
       • Police officers do not owe general duty of care to victims
         • Swinney - But do to informants
           • and to known suicide risks - Reeves
     • Capital Counties & Plc v Hampshire
       • Duty not to make situation any worse
         • but no duty to respond
     • Kent v Griffiths
       • Emergency Duties do not owe a duty of care to public unless 'assumed responsibility'
         • Placed reliance i.e. removed alternative methods
   • Public Bodies
     • Home Office v Dorset Yacht
       • Direct relationship, failure to control kids = liable
         • sue public body, not damages against children as they go no monieeee
     • X v Bedfordshire CC
       • failed to take action against children being abused
         • Parents did abuse, had no money
           • when kids grow up, claim against public body i.e. local authority
             • BUT ALREADY DIFFICULT TO MANAGE CASE LOAD, SO NO LIABILITY
               • Not fair just and reasonable
     • JD v East Berkshire
       • Health Professionals Duty of care for child not parents as child is the patient
   • Special Groups
     • Smith v Ministry of Defence
       • Doctrine of combat immunity
         • Duty of care could be owed to soldiers when being trained and equipped for combat
     • Mulachy v Ministry of Defence
       • No duty of care between soldiers on active duty
         • FRIENDLY FIRE!

2. Breach

   • Blyth v Birmingham Waterworks
     • Objective reasonable person test, not subjective
       • Applying standard of care - Balancing exercise
         • LIKELIHOOD OF INJURY/SEVERITY OF INJURY (COST OF RUNNING RISK) V D'S PURPOSE/EASE OF TAKING PRECAUTIONS (COST OF AVOIDING RISK)
           • Bolton v Stone
           • Uren v Leisure
             • Game had social value BUT risk of injury should not have happened, easily avoidable by not diving head first
           • Barnes v Scout Association
             • Turning off light significantly increased the risk of injury - Not part of social utility
           • The Wagon Mound - Damage foreseen by reasonable man. Liability not depend solely on damage being direct or natural consequence
   • Children
     • Mullin v Richchards
       • Standard applied was that of a reasonable child of that age
       • Orchard v Lee
     • Harris v Perry
       • Parents not liable if suitable supervision for activity and risks
   • Disabilities
     • Dunnage v Randall
       • Objective test however if not aware of disabling condition or autonomous state = not liable
         • Mansfield v Weetabix = Not aware
   • Medical Law/Professional skills
     • Bolam
       • Dr not guilty if acted in ACCORDANCE W a PRACTICE ACCEPTED BY A RESPONSIBLE BODY OF MEDICAL MEN SKILLED IN THAT PARTICULAR ART MERELY BC BODY OF OPIN WHO'D TAKE CONTRARY VIEW
       • DR judged on whether acted in accordance with other skilled doctors (not withstanding contrary views)
       • Bolitho v City & Hackney Health Authority
         • BUT, any decision must also be LOGICAL and consider the RISKS & BENEFITS
           • Hyde & Associates v JD Williams
             • Bolam test is equally applicable to non-medical contexts
               • e.g. judge the level of skill to a reasaonble person carrying out that skill
       • Defreitas v O'Brien
         • Not about size of body of opinion, it is about the QUALITY

3. Economic Loss

   • Spartan Steel v Martin
     • Consequential damage is recoverable, however, PURE economic loss is not (too remote/indeterminate)
   • Special Relationship
     • Hedley Byrne
       • Duty of care could exist leading to pure economic loss if parties were in a 'special relationship'
         • Key factor is ' Reasonable Reliance'
       • Caparo v Dickman
         • Proximity between C and D IMPORTANT
           • HB Exists when... James McNaughton v Hicks
             • Purpose for which statement was made
               • The state of knowledge of the maker of the statement
                 • Size of the class to which the recipient belonged
                   • PROXIMITY
                   • Relationship between maker, recipient and any 3rd party
                     • Reliance by the advisee
                 • Did statement maker know the purpose, whom it'd be communicated, reliance there might be
               • AND Purpose for which it was communicated
     • Mutual Life v Evatt
       • Distinction between Advice and INFO
         • C in the course of business makes it CLEAR he is seeking advice and will act upon it
     • Chaudhury v Prabhaker
       • CONTEXT
         • Can occur in social setting unless words negate liability e.g. dont quote bruv
           • Lejonvarn v Burgess & Burgess
   • 3rd Parties
     • White v Jones
       • 3rd party liability based on reliance.. assumed responsibility = fair just n reasonable

4. Psychiatric Injury

   • McLouglin v O'Brien
     • Immediate Aftermath - Raw injuries
     • Liverpool Women's Hospital NHS Trust v Ronayne
       • can't claim if seen in hospital condition, drips monitors etc
   • Attia v British Gas
     • Loss of possessions can amount to a psychological injury
   • Primary Victims
     • Page v Smith
       • reasonable foreseeability of physical injury is sufficient to bring with it a duty in regard to psychiatric injury
         • Zone of danger
           • Secondary V: In position of spectator or bystander
     • White * Others v Chief Constable of South Yorkshire Police
       • Police officers CAN'T be secondary victims, had to be PRIMARY of rescuers
   • Secondary Victims
     • Alcock v Chief Constable
       • Close Ties of Love & Affection
         • Proximity of Time & Space
           • Witnessing with own (unaided) senses
             • Sudden shock
               • 'sudden appreciation by sight or sound'
             • What is seen on television or told by someone else is not immediate enough
               • Ravenscroft Transatlantic
           • immediate aftermath 9 hours = not proximate (Alock)
             • Two hours... Yes... Galli-Atkinson v Seghal
               • Walters v Glamorgan
                 • Series of events make up entire event = immediate (36hrs)
                   • W v Essex County Council
                     • Despite not having proximate relationship, DoC can arise if burdened with having unintentionally been responsible for abuse of children
         • Rebuttable presumption between husband and wife and parents and children; those in other relationships have to convince court
     • Hicks - 0 Fear of impending death before accident = not sufficient
   • Rescuers
     • McFarlane v Caledonia
       • Normal human level of bravery is expected, NEED TO BE OVER AND ABOVE THAT
         • if normal person wouldn't be disturb can't bring a claim
           • Test is whether rescuer is a man of normal phlegm & fortitude

5. Causation

   • Factual Causation
     • Barnett v Kensington
       • 'But for' the defendant's breach of duty, would Cs damage still have occurred?
         • Yes = Break of chain of causation
         • No = Liability
     • Material Contribution
       • Bailey v Ministry of Defence
     • One, but unidentified acuse
       • 'a material increase in risk'
         • Failure to take a step which caused materially increased the risk
           • McGhee v National Coal Board
   • Multiple Causes
     • Fairchild v Glenhaven
       • Multiple agent, 1 cause
         • Compensation Act 2006 s3
           • Any one claimant could bear 100% liability regardless of extent of their involvement with claimant
       • Test of material contribution applies to all mesothelioma cases even where caused by one negligent source
         • as long as more than minimal cause which materially increased risk
           • Sienkiewicks case
     • Wilshere v Essex
       • Multiple causes, one agent
   • Consecutive Causes
     • Jobling v Associates Diaries
       • D's liability ceases 'vicissitudes of life' = ONE TORT FOLLOWED BY NATURAL OCCURRENCE
     • Baker v Willioughby
       • D still liable, designed to avoid under-compensation of P
   • Loss of Chance
     • Hotson v East Berkshire
       • Have to prove on balance of probabilities that but for D he would have recovered
     • Gregg v Scott - C chances had never been 51% did not matter if could have gone from 25 to 45%
   • Legal Causation
     • The Wagon Mound - 'reasonably foreseeable' i.e. that damage was not too remote
       • Thin skull rule exception
         • D liable for outcome not reasonably foreseeable where loss suffered by C is partly due to his own pre-existing
     • Type of injury
       • Hughes v Lord Advocate
         • only the type of damage has to be reasonably foreseeable and not the manner in which it occurs or its extent
     • Actions by the claimant
       • Unreasonable behaviour by putting himself in a dangerous situation
         • McKew v Holland
           • Wieland v Cyril Lord
     • Actions by Third Parties
       • Knightley v Johns
         • Police officer's order broke the chain of causation from first accident
           • Johns therefore not liable for 2nd injury to the motorcyclist
             • Was a positive act, separate from natural consequence of Johns negligence and common sense order was a new cause of disturbing sequence of events