Unit 2 | Liability in Negligence (AQA)

Unit 2 - Section B - Negligence

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  • Created on: 27-04-12 11:14
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Liability in negligence
3 things must be proven;
Duty of care ­ Breach of duty ­ Damage
Duty of care;
The definition of negligence is found in Blyth v Birmingham Waterworks 1956; `Negligence is the
omission to do something that a reasonable man would do or to do something which a reasonable
and prudent man would not do'.
The reasonable man is defined as `the man on the Clapham omnibus' by Hall v Brookland's Autoclub
The question arises to whom and in what circumstances the reasonable man would owe a duty of
care. The case of Donoghue v Stevenson provided an answer.
This established the neighbour principle. Lord Aitkens said that we owe a duty of care to our
neighbour. Our neighbour is someone who is foreseeably affected by our actions.
Caparo v Dickman set out a two part test to decide whether a duty of care exists. If there appears to
be no existing precedent, then a general 3 part test is applied:
It was reasonably foreseeable that a person in the claimant's position would be injured
There was sufficient proximity between the parties
It is fair, just and reasonable to impose liability on the defendant
An objective test is applied;
e.g. would a reasonable person, in the defendant's position have foreseen the injury?
Donoghue v Stevenson ­ or a more modern case;
Kent v Griffiths where the ambulance service should have foreseen that delays could endanger the
life of a patient.
This is measured in space, time and relationship.
Case law here is developed around `nervous shock'.
Bourhill v Young 1943 ­ where there was no proximity.
The claimant was a pregnant woman who heard a motorcycle accident (but did not see it).
She approached the scene of the accident and saw blood on the ground. 8 months later she
had a still birth and sued Mr Young. The court ruled that there was not sufficient proximity
between the parties.
Mcloughlin v O'brian 1983 ­ where there was proximity due to relationship
The defendant's family had been involved in an accident. She went to the hospital and saw
her husband and daughter seriously injured and covered in mud, and her other daughter
dead. As a result she suffered serious nervous shock. She sued the defendant who was
responsible for the accident. The court ruled that there was sufficient proximity as the
claimant had a close relationship with those involved in the accident.

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`Is it just, fair and reasonable to impose a duty of care?'
This is often a matter of public policy, where the courts will take into account the interests of society
as a whole. Therefore many cases have concerned liability in the public sector.
Hill v Chief Constable of West Yorkshire ­ The police interviewed the Yorkshire ripper and released
him for lack of evidence. He killed again and the victim's mother tried to sue the police.…read more

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Breach of duty;
If a duty of care exists, then it must be proven that the defendant has breached the duty.
e.g. has broken the duty of care by failing to reach the required standard of care.
The standard of care is that of the `reasonable man' as established in Blyth v Birmingham
The objective standard of care is that of the ordinary person being competent.…read more

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Wells v Cooper 1954 ­ The defendant fitted a door handle for the claimant. The claimant had
trouble shutting the door as it was a windy day. The door handle fell of causing the claimant
to fall down his steps and sustain an injury.
The court ruled that the standard of care required was that of a reasonably competent
professional (carpenter) doing the job. They ruled that the claimant reached this standard
and was not liable.…read more

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This concerns the loss of the claimant.
It requires examination of;
(a) Causation;
Factual and
(b) Remoteness
(a) Factual causation
Factual and legal causation must be proven
The `but for' test is applied;
`but for the defendant's action / omission, would the claimant have suffered harm?'
Barnett v Chelsea and Kensington Hospital Management Committee ­ Men went into a
hospital, vomiting after drinking tea. They were sent home without examination and one of
them died.…read more

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Doughty v Turner Asbestos 1964 ­ Claim failed as there was no scientific knowledge of the
reaction. Therefore the damage was not foreseeable.
The most recent guidelines for remoteness came from Gabriel v Kirklees Metropolitan
Council ­ A six year old was injured by children playing on a building site. The judge ruled that
4 questions needed to be asked to determine negligence.…read more

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The burden of proof
The claimant must prove that the defendant is liable on the balance of probabilities.
e.g. it is more likely than not, that the defendant was negligent
Cases can be pursued in both, the criminal and civil courts. If the defendant has already been
convicted of a crime, for the same event, the negligence case does not need to be proven.
e.g.…read more

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Multi track cases are heard by a circuit judge
The claimant will fill in a claim form
This form will have details about the claimant and the claim. It will contain a statement of facts and a
fee will be paid.
The claim form is `served on the defendant' (sent to), usually by post.…read more



Really good! :)


also mention in bourhill v young, that the court stated that the harm was not foreseeable as she brought herself in the area of danger (not a primary victim) thus it was not fair, just and reasonable to impose a duty. In fact this is a good case that outlines the Caparo test.

Nettleship v Weston: any reasonable "competent" driver

"Bolam": If it meets standard of a "responsible body of medical opinion"

Also mention that "take your victim as you find him" is the thin skull rule




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