AQA Law 02 liability in negligence

Tort = civil wrong, involving injury/damage caused by careless behaviour which entitles claimants to claim compensation.

To suceed - must be proved that C was owed duty of care, there's breach of duty and that relevant damage/injury caused by D.

defined in donohuge v stephenson (snail in beer) as 'neighbour principle' (neighbour = anyone who might be affected by what you do). this principle was modified in caparo v dickman into a three-part test:

1. was loss/damage reasonably forseeable? (kent v griffiths -  asthma attack fatal on ambulence not arriving) (bourhill v young - misscariage due to seeing blood from motorcycle accident)

2. was there sufficient proximity? (bourhill v young) (hill v chief constable of west yorkshire - yorkshire rippers last V's mother)

3. was it fair, just and reasonable to impose the duty? (hill v chief consable of west yorkshire)

reasonable man test, where if falls below standard is a breach of duty - principle set out in blyth v birmingham waterworks co (pipe froze and burst causing damage to house)

- D compared to person of average skill (netleship v weston -learner driver) 

- if D professional person is compared to average skilled person (bolam v friern hospital management comitee - followed procedures supported by body of medical opinion) (wells v cooper - fitted handel to reasonable standard)

- conduct of child is compared to that of a child of same age (mullins v richards - girls snapped rulers, blinded one girl)

probability of harm: more care needs to be taken if something is likely to happen (bolton v stone - 6 cricket balls out in 30 years over 17ft fence) (haley v london electricity board - hammer left to warn people of hole, D was blind)

magnitude of risk: how serious injury could potentially be, the more serious, the more care neds to be taken. (paris v stepney borough council - man blind in one eye asked to do job which had risk to eyes, should  have been given goggles)

cost and practicality of taking risk - if cost is too great, D not in breach (latimer v aec - factory flooded and sawdust put on floor, was unreasonable to close factory)

possible benefits of risk: some risks benefit society (watt v hertfordshire cc - fireman injured due to using truck not adapted for equipment, was emergency so benefits of saving V outweighed risks)

person claiming must be able to prove they've suffered damage/injury, that D caused damage and that damage is not too remote.

D caused damage: whether injury occured 'but for' D's ctions (barnett v chelsea hospital - patient would have died anyway, even if not sent home by hospital)

damage musn't be too remote: must be reasonably forseeable (the wagon mound - oil spilled into lake which ignoted on other side of harbour) as long as the damage is forseeable, it doesnt matter if it happens in an unforseeable way (hughes v lord advocate - paraffin lamps set alight)

thin skull rule - take V as you find them (smith v leechbrain - burn caused cancer)

the burden of proof is on the claimant to prove the defendant is guilty.

the standard of proof is to have proof on the balance of probabilities.

facts of the case speak for itself. the claimant will still try to prove the defendant has been negligent, which D will be guilty of unless can rebut with another plausible explanation - so the burden of proof shifts to the defendant to prove their innocence. (scott v london and st katherine dock's - bag of sugar fell from D's window) (mohan v osbourne - swabs left in patient after surgery) (ratcliffe v plymouth and torbay - injury to spinal cord via spinal anasthetic vs condition)

to try to return claimant to the position they were in before the tort was commited. claimants are expected to follow 'mitigation of loss' - geeral duty to minimise loss.

quantifiable costs (pecuniary damages) easy to calculate as they are actual losses from the date of tort upto the date of the trial e.g. loss of earnings and medical costs - also any services, treatments, medical appliances such as wheelchairs (povey v rydal school) or unpaid services of relatives/friends.

only reasonable expenses covered (cunningham v harrisonn - C said he needed housekeeper and 2 nurses which was unreasonable)

non-quantifiable losses. they aren't easy to calculate as they are future losses. 

pecuniary - future medical expenses and loss of earnings which is calculated by average annual earnings lose (multiplicand) X number of years (multipllier) (max 18)

non-pecuniary - pain, suffering and injury itself and loss of amenity (joy in everyday activities) (west v shepard) such as inability to walk,drive, shave, play.

awad of damages is reduced if C recieves financial support e.g. social security benefits.

provisional damages: generally only one award of lump sum can be made but court can make provisional award llowing C to return if their condition deteriorates.

structured settlemet: covered by Damages Act 1996, common to be invested and C recieves regular instalments.

death of C - if C dies before being able to claim damages, their estate can claim through C's legal representative.

contributory negligence: C is partly to blame for injuries/damage, damages are reduces (froom v butcher - damages reduced for not wearing a seatbelt)

personal injury clains less than £50000and damage to property under £25000 start in county court, above start in high court (queens bench division)

the person who starts is called the claimant - they issue a claim form. the person who is sued by the claimant is called the defendant.

when the claim form is served D can: admit claim and pay the money, defend the claim, lodge a counter-claim against the claimant, if D does nothing for 14 days the claimant can apply for a default judgement where D will have to pay full amount.

small claims track: for the most basic claims upto £10000, personal injury up to £1000

fast track: for claims from £10000-£25000 and personal injury over £1000. there's a preliminary hearing to set out a timetable, and must be heard in 30 weeks.

multi-track: for complex claims over £25000, or complex cases bellow that amount. in county court - heard by circuit judge who speeds up case tto manage costs. only track used in high court - will be case management hearing where judge will impose timetable.

all cases over £50000 have to be heard in high court and some complex cases over £25000 will be heard here.

most are settled and dont go to court, or are settles before trial. people are encouraged to use ADR if one of the parties unreasonably refuses to consider the option the court can disallow legal costs (dunnett v railtrack) 

types available: 

negotiaiton - parties try and reach agreement together

mediation - a neutral third-party will help parties reach agreement

concilliation - a third-party will offer advice to help parties come to aan agreement which they can accept or reject.