Negligence question structure

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  • Negligence Question Structure
    • 1. Duty of care
      • 2. Established Duty
        • 2A. Is the case concerning one of an existing Duty?
          • Robinson v Chief Constable of West Yorkshire (2018) If there is an existing, similar precedent (or some statutory authority) for deciding if a duty of care exists, then that should be followed, and an automatic duty of care owed. 
            • This can include current precedents.
              • Doctor – Patient (Montgomery v Lanarkshire)
              • Driver – Passenger (Nettleship v Weston) Road Traffic Act 1988.
            • An automatic duty is established if there is one through a precedent or statutory authority, and then a duty of care is owed (Go to step )
              • If not go to step 3
      • 3. Incremental Approach
        • 3A. Is the case concerning similar principles to existing case law?
          • Use the Incremental approach by considering authorities that provide an answer incrementally and by analogy (through identifying the legally significant features of the situations covered by the earlier authorities).  
            • This has the courts consider whether there is an obvious reason to impose a duty of care and whether it would be fair to do so.
            • If this established a duty then a duty of care is owed
              • If there is no established relationship and no analogous duty then the situation is novel, then go to step 4
      • 4. Novel situations
        • To establish if the defendant owes the claimant a duty of care, the Caparo v Dickman test is used - all three parts must be proven to establish a duty of care.
          • A. Is the damage or harm reasonably foreseeable?
            • The damage/harm will be reasonably foreseeable if the claimant is visibly likely to be affected by the defendant’s act or omission (The neighbour test). 
              • Kent v Griffiths
              • Donoghue v Stevenson
              • If this is proven to establish a duty of care, move on to section B
                • If not proven, then no duty of care is owed.
          • B. Is there a sufficiently proximate (close) relationship between the defendant and the claimant?
            • This could be proven through either a close relationship, such as parent and child (Watson v BBBC), and also physically close in time and space (Bourhill v Young)
              • If this is proven to establish a duty of care, move on to section C
                • If this is not proven, then no duty of care is owed.
          • C.Is it fair, just and reasonable to impose a duty on the defendant?
            • It is fair to impose a duty on the defendant even when they are the emergency services (Capital & Counties plc v Hampshire County Council, Kent v Griffiths).
              • Capital & Counties plc v Hampshire County Council, and Kent v Griffiths
              • The key reason why it would not be fair to impose a duty would be for public policy reasons such as ‘the floodgates argument’.
                • Hill v Chief Constable of West Yorkshire.
    • 5. Breach of Duty
      • To establish if the defendant had a breached their duty of care, the defendant will be judged against the standard of care of the reasonable man carrying out the same activity
        • Blyth v Birmingham Waterworks
        • In assessing whether the defendant has fallen below the standard of care, the court will weigh and balance 4 risk factors.
          • 9. The Social Usefulness of the Activity
            • If the defendant is doing a socially useful activity ie responding to an emergency then the court will allow him to take greater risks.
              • Watt v Hertfordshire CC
          • 8. The Practicality of taking Precautions
            • The court consider how easy it was in terms of cost and effort for the defendant to eliminate the risk.If relatively easy (little effort and cost) then the court will expect these precautions to be taken.
              • Latimer v AEC Ltd
          • 7. The Potential Seriousness of the Harm
            • Where there is the potential for serious harm to occur then the court will expect the defendant to take greater care of the claimant (victim).
              • Paris v Stepney BC
          • 6. The degree of Risk
            • If the harm is likely then the court will expect the defendant to take greater care to minimise or eliminate the risk.
              • Bolton v Stone                         Halley v London Elec                    Roe v Minister of Health
          • 10. If the defendant has breached their duty then move on to section . However, if not then they are not guilty.
    • 11. Damage
      • Once a breach of an owed duty has been proven then it must be proven that the breach caused the damage. Two elements are considered
        • 12. Causation in Fact
          • The Claimant must prove that he would not have suffered the harm/damage ‘but for’ the defendant’s act or omission 
            • Barnett v Chelsea & Kensington Hospitals
        • 13. Remoteness of Damage
          • The Claimant must also prove that the harm/damage that he suffered was reasonably foreseeable. This means whether the harm/damage was the type of damage that would be expected or anticipated as a result of the act or omission. 
            • If the damage is reasonably foreseeable then it is said to be not too remote and the claim will be successful. If it is not reasonably foreseeable then it is too remote and the claim will fail.
            • The Wagon Mound, Bradford v Robinson Rentals
          • 14. The type of injury is forseeable even if it occurs in an unexpected way.
            • The defendant will be liable if the type of injury was foreseeable/anticipated even though the precise way in which it happened was not.
              • Hughes v Lord Advocate
            • 15. The Thin Skull Rule
              • The defendant must take his victim as he finds him. If the type of damage is reasonably foreseeable/anticipated but it is much more serious because of something unusual about the defendant (or his property) then the defendant is still liable
                • Smith v Leech Brain & Co
              • If the claiment is able to prove duty of care, breach of duty and that the defendants breach of that duty caused that damage would have the defendant guilty

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