Negligence question structure
- Created by: I_Am_Trying_I_Promise
- Created on: 21-11-22 11:38
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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
- This can
include current precedents.
- 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.
- 2A. Is the case concerning one of an existing Duty?
- 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
- 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).
- 3A. Is the case concerning similar principles to existing case law?
- 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.
- 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).
- 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.
- If this is proven to establish a duty of care, move on to section C
- 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)
- 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.
- 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).
- A. Is the damage or harm reasonably foreseeable?
- 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.
- 2. Established Duty
- 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
- If the defendant
is doing a socially useful activity ie responding to an emergency then the
court will allow him to take greater risks.
- 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
- 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.
- 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
- 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).
- 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
- If the harm is likely then the court will expect the defendant to take greater care to minimise or eliminate the risk.
- 10. If the defendant has breached their duty then move on to section . However, if not then they are not guilty.
- 9. The Social Usefulness of the Activity
- 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
- 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
- The Claimant must prove that he would not have suffered the harm/damage ‘but
for’ the defendant’s act or omission
- 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
- 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
- The defendant will be liable if the type of injury was
foreseeable/anticipated even though the precise way in which it happened was
not.
- 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.
- 12. Causation in Fact
- 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
- 1. Duty of care
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