law 04 

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  • NEGLIGENCE
    • duty of care
      • duty of care was originally established in the case of Donoghue V Stevenson.
      • The modern day three part test comes from Caparo V Dickman
        • Firstly it is reasonably foreseeable that if the defendant is careless the claimant could siffere injury or harm?
          • Kent V Griffins it was held that it was reasonably foreseeable that a patient could be injured if an ambulance fails to arrive in a reasonable amount of time.
        • secondly is there legal proximity (time, space, relationship) between D & C ? to decide whether there is sufficient legal proximity the courts will use the neighbour test as defined by Lork Atkin in Donoghue V Stevenson
          • I.E the court would ask, did D have C in contemplation when acting? in King V Philips (1952) there was no proximity between a taxi driver and a women in a house 7 yards away, as the taxi driver would not have had her in contemplation when reversing his taxi.
        • Finally, it is now necessary to ask whether it is just, fair and reasonable to impose a duty of care. In most situations it will be just fair and reasonable to impose a duty. However, defendsants who are in the public sector are more likely to find claims against them fail, as its not just fair and reasonable to impose a duty on them.
          • The police and other emergency services need to be able to act without undue worry about the legal action in negligence against them. In Hill V Chief Constable Of West Yorkshire (1998) it was held not to be just, fair and reasonable to impose a duty on the police force investigating the Yorkshire ripper for policy reasons
    • Breach of Duty
      • To decide whether there is a breach of duty, the court will use the Bolam Test. I.E has the defendant fallen below the standard of the reasonable man with their personal skill.
        • Before applying the Bolam Test the court must decide which of the Defendants characteristics are shared by the reasonable person
          • for example a trainee carrying out a particular skill will be judged against the standards of a competent professional carrying out that skill,
            • as demonstrated in the case of Nettleship V Weston where a learner driver as judges by the standards of a reasonable qualified driver,
            • An amateur eg, a DIYer will be judged by the standards of the reasonable amateur unless the work should have been entrusted to a professional. This was shown in the case of Wells V cooper where an in deciding whether D breached their duty, the court will consider several risk factors
              • The degree of risk E,G Bolton V Stone where the degree of risk was very low as a cricket ball was hit out of the ground just 6 times in 30 years
              • The seriousness of the risk E.G Paris V Stepney B.C the risk was very serious as a one-eyed mechanic lost the sight in his remaining eye as the employer failed to provide him with protective goggles
              • The practicality of taking precatutions was too high I.E closing a factory therefore the defendants were judged not to have breached their duty
          • The courts look at each of the factors in detail and use a combination of them to decide whether or not the defendant fell below the standard of a reasonable man with their special skill (BOLAM TEST)
    • RESULTING DAMAGE
      • it must be proven that D's breach caused the resulting damage. it must be proven that the damage was a direct and foreseeable(not too remote)
        • to illustrate that the damage was direct (factual causation) we use the 'but for' test as illustrated by Barnett V Chelsea Hospital
          • But for the doctors breach the patient would have died as he had so much poison in his blood. The court held that his death was not direct consequence of the hospitals breach of duty
        • The second things is that the damage should be foreseeable, as illustrated by The wagon mound
          • where it was held that the damage was too remote when the fuel split by D caused a wharf to catch fire a number of days after the spillage
        • however the courts would have to consider the thin skill rule I.E take you victim as you find them. This means that provided that the type of damage is reasonably foreseeable, but becomes more serious because of the weakness, the defendant is liable for the more serious injury.
          • This is illustrated by Smitch V Leech Brain & Co, where a burn was reasonably foreseeable and this burn caused cancer and ultimately death, D was Liable for the death of C under the thin skull rule. D may also be liable if the type of injury was foreseeable even if the precise way it happened was not (Hughes V Lord Advocate)
    • defences
      • there are two possible defences to a negligence claim, contributory negligence and consent
        • contributory negligence
          • contributory negligence is a principle which allows the court to apportion blame between the two parties. it is a relatively modern defence and was introduced by the law reform (contributory negligence)  act 1945)
            • for the defence to succeed the defendant has to show that C's behaviour was below the standard of a reasonable person and that C's behaviour contributed to their own loss
              • The most common example of the Contributory negligence is not wearing a seatbelt in a cra and this leads to a more serious injury: Froom V Butcher (1975) C's damages were reduced by 25% due to failure to wear a seatbelt. The courts will reduce C's damages to reflect their own carelessness
        • consent
          • consent is a defence that applies when C knows that there is a risk of D acting in a negligent way and freely consents to that risk, this is also a full defence meaning the claim will fail
            • Morris V Murray (1990) claimant went for a plane ride with D who had consumed 17 whiskeys defence of a consent succeeded
    • remedies for negligence
      • the main remedy for successful negligence claim is simply damages
        • remember from law 02 that damages are simply compensation in the form of money to compensate C for their loss
          • generally damages are awarded for loss to property, damages for personal injury and or loss of future earnings
            • damages can be given in a lump sum or a structured settlement
    • medical negligence
      • in addition to being asked to discuss a defendants rights and remedies in relation to a general negligence claim
        • if the case study relates to medical negligence the law relating to duty of care and resulting damage is the same as for general negligence
          • however the section in relation to breach of duty is where the differences occur
            • after applying the normal duty of care and the breach of duty two more things must be applied
              • applying the BOLAM test, if their is substantial body of opinion in the medical profession that supports D then he has not breached his duty
                • then apply the BOLITHO test after BOLAM where it must be demonstrated that the method was based on logic and did not include unreasonable risk
                  • finally is it possible to use RES ISPA LOQUITOR, let the actions speak for themselves

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