Law - Negligence

Law - Negligence

1. What are the contents?

   • 1. Duty of Care
     • 2. Duty of Care scenario structure
       • 3. Breach of Duty
         • 4. Breach of Duty Scenario Structure
           • 5. Res Ipsa Logquitar Essay
             • 6. Causation (Damage)
               • 7. Causation (Damage) Scenario Structure
                 • 8. Damages essay/scenario
                   • 9. Civil Procedure essay/scenario
                     • 10. The three-track system

2. Duty of Care essay

   • 1. Donoghue v Stevenson 1932
     • Foundation of modern law of negligence in which Lord Atkin set out the 'Neighbour test'
       • The Neighbour Test is when you must take reasonable care to avoid acts which would be likely to injure your neighbour who is a person 'closely or directly' affected by the act.
         • Set out the modern three part test which replaced the neighbour test
           • There must be foreseeability, proximity and fair, just and reasonable to impose a duty on the D.
             • All three elements must be present.
     • 2. Caparo v Dickman (1990)
       • 3. Foreseeability
         • This is an objective test.
           • E.g - Kent v Griffiths (2000)
             • Court held that it was reasonable foreesable that a sick person waiting for an ambulance could be further injured by the ambulance taking too long to arrive.
               • There is the closeness between the claimant and defendant in space, time or relationship.
                 • E.g - Bournhill v Young (1943)
                   • Court held that there was no duty of care as there was no proximity
                     • Claimant was away from the accident and could not see it UNTILL she chose to go and see the aftermath
         • 3. Court will ask if some harm to a person in C's position was reasonably foreseeable as a result of D's act.
         • 4. Proximity
           • 5. Fair, Just and Reasonable
             • Court will decide if it was F,J, and R in order to impose a duty
               • There is a public policy issue where Judged deciide whether it would benefit the public to impose a liability on D
                 • OR, whether it would lead to Floodgates of Litigation
                   • E.g - Hill v Chief Constable of West Yorkshire
                   • Court held that it would not be F,J and R to impose a duty of care on the police
                     • As they must be able to make arrests without fear of prosecution
                       • Otherwise they would have to act defensively which is not in the public's interest

3. Duty of Care Scenario Structure

   • 1. Caparo v Dickman (1990)
     • STATE - Set out the modern three part test which replaced the neighbour test in Donoghue v Stenevenson
       • STATE - There must be foreeseeability, proximity and fair, just and reasonable to impose a duty on the D.
         • STATE - All three elements must be present.
     • NO APPLICATION NEEDED.
   • 2. Foreseeability
     • STATE - First the court will ask if some harm to a person in C's position was reasonably foreseeable as a result of D's action.
       • (Kent v Griffiths)
     • APPLICATION NEEDED
       • Some harm to a person in C's position is reasonably foreseeable if...
   • 3. Proximity
     • APPLICATION NEEDED
       • There is proximity in (space, time and/or relationship) because..
     • STATE - Next the court will ask if There is the closeness between the claimant and defendant in space, time or relationship.
       • Bournhill v Young
   • 4. Fair, Just and Reasonable
     • State - Lastly the court will look at whether it is F,J and R to impose a duty on D
       • Public policy issue and Floodgates of litigation
         • Hill v Chief Constable of West Yorkshire
     • APPLICATION NEEDED
       • Here the D is not/is a public authority and will/will not open floodgates of litigation if she/he is sued. Decide Whether its F,J and R to impose a duty?

4. Breach of Duty

   • 1. The test for breach of duty is objective: Has D taken the activity to the standard of the 'reasonable man'
     • Blyth v Birmingham Waterworks
     • Children should be judged against the standard of other children their age
       • (Mullins v Richards)
         • D was judged against the standard of a reasonable 15 year old
       • Professionals should be judged against the standard of a reasonable professional
         • (Bolam)
         • No allowance made for learners
           • (Nettleship v Weston)
             • Learner driver did not reach the standard of a reasonable driver so she had breached her duty
   • 2. Four Risk Factors
     • 1. The Likelihood of harm risked
       • The more likely the harm, the more care needed.
       • (HAYLEY V LEB)
         • The court held the it was likely that a road in London would be used by blind or partially blind people as 1 in 100 of the population is blind or partially blind.
           • Reasonable man would have taken further precautions to protect this level of risk
         • LEB had breached there duty of care
     • 2. Seriousness of the harm risked
       • The more serious the harm, the more care needed
       • (PARIS V STEPNEY)
         • Standard owed was greater as claimant was vulnerable as he only had one good eye and lost his remaining sight as his employers failed to provide him goggles.
           • HIS employers breached there duty of care
     • 3, Cost and practicality of preventing the risk
       • The amount of time and money D spends should be in proportion to the risk
       • (BOLTON V STONE)
         • 17 foot fence around the ground was a reasonable precaution
           • The club had not breached its duty of care
       • 4. Social important or benefit of the activity
         • If D's actions in taking the risk have a benefit to society such as acting in an emergency, the standard of care may be lower.
         • (WATT V HERTFORDSHIRE COUNTY COUNCIL)
           • The court held that rushing to save the life of a motorist was worth the risk of injuring the fireman
             • The council had not breached its duty of care

5. Causation

   • 1. Damage = Causation
     • There are two types of causation which are Factual and Legal Causation
       • FACTUAL CAUSATION
         • 1. Looks at whether the D was the factual cause of C's loss.
           • 2. Uses the 'But For Test'
             • 3. The C must show that BUT FOR the D's actions C would not have suffered the harm.
               • (Barnett v Chelsea and Kensington Hospital)
                 • There was no factual causation
       • LEGAL CAUSATION
         • 1. Considers whether the type of loss was reasonable foreseeable (not too remote)
           • 2. If it is not reasonably foreseeable, it is too remote
             • 3. Thus, C cannot claim
               • (The Wagon Mound)
                 • The damage was not reasonably foreseeable
   • 2. Extend on Unforeseeable
     • Once it has established the type of damage suffered is reasonably foreseeable, it does not matter that the damage occurred in an unforeseeable way or to an unforeseeable extent.
       • D is still liable; (HUGHES V LORD ADVOCATE)
   • 3. Break the chain?
     • Only unforeseeable acts break the chain of causation
       • (SCOTT V SHEPARD)
   • 4. Thin Skull Rule
     • D must take C as he finds him and is still liable where C has an unusual characteristic making the damage suffered worse.
       • (SMITH V LEECH BRAIN)

6. Damages Essay/Scenario

   • 1. Aim of damages is to compensate the claimant.
     • Put the back into the position that they would've been if the accident had not occured
       • Losses that are too remote cannot be claimed for
     • YOU COULD MENTION C's NAME SO THE AIM OF DAMAGES IS TO PUT 'BOB' IN THE POSITION.. ETC..
     • 2. The claimant is under a duty to mitigate loss
       • To take reasonable steps to minimise the loss and not make it any worse
       • ANY STEPS C WOULD TAKE?
   • 3. There are two types of damages - Special and general
     • Other different heads of damages are for example, damage to property, loss of future earnings, pain and suffering etc
       • Can be calculated specifically and are up to date of the trial
         • They include: Damage to property, loss of earnings to the date of trial and cost of care to the date of the hearing.
           • AND, paid costs must be reasonable (Cunningham v Harrison)
           • IDENTIFY THE SPECIAL DAMAGES IN THE SCENARIO
       • Special Damages
   • 4. General Damages
     • Split into two:
       • 1. Pecuniary = easily quantifiable
         • 2. Non - Pecuniary = Not so easy to quantify
           • Include the injury itself, pain and suffering and loss of amenity
             • (RUXLEY ELECTRONICS)
               • In non-pecuniary loss, the courts are guided by the Judicial College Guidlines
                 • Interest will be payable on the reward (Jefford v Gee)
           • THERE WILL ALMOST ALWAYS BE PAIN AND SUFFERING AND THE INJURY ITSELF - IS THERE A LOSS OF AMENITY
         • IS IT LIKELY THE C WOULD NEED FUTURE CARE OR HAVE A CLAIM FOR FUTURE LOSS OF EARNINGS
       • Include the cost of future care and future loss of earnings
     • 5. The court can only award damages as a lump sum.
       • Lump some is appropriate where there is damage to property or minor personal injury
         • Damages act 1996 - structured settlement is possible when parties agree.
           • Structured Settlement is periodic payments. Only suitable where the C is a child or seriously injured so cannot take care of the money.
       • WHICH ONE IS THE MOST SUITABLE FOR THE C IN THE SCENARIO. REMEMBER - LUMP SUMS ARE THE MOST COMMON.

7. Civil Procedure

   • ADR - Alternative Dispute Resolution
     • 1. Parties are encouraged to reslove matters outside of the court.
       • 2. Pre - action protocols
         • contains a series of procedural requirements aimed at encouraging settlement
           • Early exchange of information
       • 3. If matters cannot be resolved...
         • C issues a claimant form = N1
           • Sent to the court with a fee
             • Claim form contains the names and addresses of the parties, brief details of the claim including the value, a statement of truth and C's signature
               • This shows whether D admits the claim or is going to defend it
                 • If the defendant is going to defend the claim, he must then serve a defence
         • 4. D must respond on form N9.
     • Arbitration, mediation and negotiation
   • 5. If the case is defended, the parties have to fill in a directions questionnaire stating...
     • - Whether ADR has been tried
       • - How much the claim is for
         • - How much has been spent so far
           • - How many witnesses there are
             • The case then can be allocated to the right track
   • 6. There are 3 Tracks:
     • The small claims track
       • For straightforward claims up too £10,000
         • OR £1,000 for personal injury
           • Heard in the County Court by a District Judge
     • The Fast Track
       • For claims between £10,000 and £25,000
         • OR £1k to £25k for PI
           • which are not complex and only last 1 day with 1 expert witness
             • Heard in the County Court by a District Judge or Circuit Judge
     • The Multi-Track
       • For complex claims over £25k.
         • Heard by a Circuit Judge in the County Court or by a High Court Judge in the High Court (QBD)
           • Claims where there are PI and the C does not expect to be awarded more than £50k must be started in the County Court
     • IDENTIFY WHICH TRACK THE CASE WILL BE HEARD ON. REMEMBER THE CASE WILL ALMOST ALWAYS INVOLVE PI AND THE LIMIT IN THE SC TRACK IS £1K
   • 7. Once the track has been allocated
     • A case management conference will be heard between the judges and parties
       • Judge will ask the parties about ADR, and give directions about the stages of the actions up till the trial
   • 8. Last stage = Trial
     • The burden of proof is on the C
       • C must prove their case on the balance of probabilities
         • If Res ipsa loquitar applies - ONLY for D to show that they were not negligent