Negligence

Negligence

1. 1.Duty of Care

   • Concerns the Relationship between the defendant and the claimant, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant in all the circumstance of the case
   • Two ways in which duty of care may be established :
     • defendant and claimant are within n ' established duty situtation
     • outside theses situations according to principle defined by case law
   • Neighbour Principle : Donoghue V Stevenson [1932] AC 562 (HL)
   • Caparo Industries Plc v Dickman [1990] 2AC 608 (HL)
     • redefined the neighbour principle, uch that it adds the requirement that there must be a relationhip of sufficent proximity and that the imposition of a duty of cae must be ; FAIR, JUST and REASONABLE
     • Caparo v Dickman suggest that there must be
       • Reasonable foresight of harm
         • Sufficient Proximity of Relationship
           • Fair, Just and Reasonable to impose a duty
   • Omissions (Failing to Act)
     • In Caparo terms,it would not be fair,just or reasonable to impose such a general duty if you see someone in peril, you re not obliged to rescue them, and if you fail to do so you cannot be liable in negligence for not acting positively
       • the are certian situations in which duty to act positively is imposed
         • Prison officer and prisoner
         • Employer and Employee
         • Occupier and Visitor
         • Parent and Child

2. the tort of negligence is concerned with the link between the defendants behaviour and the risk that ought to have been forseen

3. Legal Burden of proving all elements of negligence falls on the claimant

4. The Claimant was owed a duty of care

   • There was a breach of the duty of care
     • The climant suffered damage as a result of that damage(Causation)
       • the damage suffered was not to remote

5. 2.Breach of Duty

   • establishing liability is to decide whether the defendant is breach of that duty in other words, whether the defendant has not come up to the standard of care required by law
   • conduct of a defendant will be measured against that of a reasonable person
     • Reasonable person is average not perfect
   • Special standards of care
     • defendant has a particular skill
     • defendant has a lack of skills
     • defendant is a child
     • defendant is competiing in or watching a sporting event
     • Skilled/Professional Defendants
       • The standard of care applied to professionals with a particular set of skills or expertise is that of a reasonable person with the same level of skill or expertise
       • Bolam v Friern Hospital Management Commitee [1957] 1 WLR 582 (QBD)
         • Claimant underwent electro-convulsive therapy in hospital as treatment for depression. doctor failed to give muscle relaxants or physical restraint. claimant suffered dislocation of hip joints and fractures.
         • Standard of care for doctors is ' the standard of a ordinary skilled man exercising and professing to have that special skill'
         • conflicting views on the use of restraints and relaxants. therefore there where doctors who would of acting in the same way. there fore the action where not negligent
         • However been critised for being protective of professionals in medical negligence case in particular, it has been argued that is allows professionals to et there own standards rather than standards set by courts
       • Bolitho v City and Hackney Health Authority
         • the court can decide that a body of medical opinon in not reasonable or responsible . if it can be demonstrated that the professional opinon is not capable of withstanding logical anaysis
         • Despite this case it is still very difficult to prove professional negliegence, where there is a body of opinion which agress that the defendant has followed an accepted practice
   • Proving Breach of Duty
     • Legal burden of proving breach is on the claimant. this must be established ' on the balance of probabilites.
       • However in certian circumstances the claimant may have some assistantace
         • Were the MAXIM RES ISPA LOQUITOR applies
           • Legal principle is ; the thing causing the damage is under control of the defendant of someone for whose negligence is the defendance responsibility
             • the cause of accident is unknown
               • the accident is such as would normally occur without negliegence
         • under SECTION 2 CIVIL EVIDENCE ACT 1968
           • if the defendant has convicted of a criminal offence by a UK court, this is taken as proof that the defendant did commit the act of negligence in any related civil proceedings
             • Examples include:: Careless and inconsiderate driving and gross negligent manslauter

6. 3.Causation

   • claimant must show a causal link between the defendants act of omission and the loss or damage suffered
   • Factual causation
     • breach of duty must be the factual cause of the damage. the general test used by courts to determine factual causation is known as the ' BUT FOR' test
       • Question to be asked as a starting point for establishing factual causation is ' but for the defendants breach of duty , would the loss or damage occured?
     • problems in proving factual causation
       • MULTIPLE CAUSE OF DAMAGE; where there is more than one possible cause of harm to the claimant does not need to show that the defendants breach of duty was the only cause of the damage or the main cause of damage
       • A 'LOST CHANCE' OF RECOVERY/AVOIDING INJURY
       • MULTIPLE CONSECUTIVE CAUSES OF DAMAGE where the are consecutive causes of damage the application of the 'but for' test is applied to the original defendant

7. 4,Remoteness

   • Final element required in establishing negligence in the extent of the damage suffered by the claimant. which should be attributable to the defendant. in other words, for how much of the claimants loss should the defendant be responsible
   • Test for Remoteness in RE POLEMIS
     • if the act would or might probably cause damage the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly tracable to the negligant act
     • the test in RE POLEMIS does not limit liability for the direct consequences of a negligent act, however servere or unforeseeable those circumstances may be. it has been critised for its unfairness in the respect