Concept of liability


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  • Created by: Talullah
  • Created on: 25-05-11 10:22


  • Tort of Negligence is solely a series of judge made laws and precedence
  • Can be committed be either an act  or  omission
  • Has three main elements which have to be proved by the claimant  
    • a Duty of care owed by D to C
    • a breach of duty by D
    • Injury or damage to C resulting from this breach
  • All Three elements must ve satisfied for a sucessful claim
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Duty of Care

  • First set out in Donoghue V Stevenson 1932
    • 'The Neighbour Test' set out by Lord Atkins
      ''Persons who are so closely and directly affected by my acts or omission that I ought to have them in mind''
  • A three stage test was established in  Caparo V Dickman 1990
    • Proximity of relationship
    • Forseeability of some harm
    • fair,just and reasonable to impose a duty of care


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Breach of Duty

  • Once a duty of care has been established it is necessary to establish whether D has  breached this duty
  • The standard demanded is not that of perfection but of the reasonable person. The standard is objective  and takes no account of D's incompetence or inexperience
    • Nettleship V Weston 1971
  • There a variety of factors the court may take into account when deciding what the reasonable person  would do
    • practicality and cost-Latimer V AEC
    • risk of harm- Bolton V Stone
    • forseeability of harm -Roe V Minister of Health
    • Vunerable claimant -Paris V Stepney
    • justifiable risk taking -Watt V Hertfordshire CC
    • skilled activites - Nettleship V Weston
    • Medical negligence -Bolam V Friern Barnett hospital/ Bolitho V City& Hackney Health Authority
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Res Ipsa Loquitur

  • Res Ipsa Loquitur - 'The thing speaks for itself'
  • legal concept for C's - suggests there must've been negligence for the incident to have occurred
  • If C is able to claim  Res Ipsa Loquitur  they DO NOT have to prove there hs been a  breach of duty- the breach must be obvious
  • Scott V London and St Katherine Docks
  • The principles are that
    • The thing that caused damage must be wholly controlled by D
    • The incident that caused the damage would've not happened unless some had been negligent
    • No other explanation for the injury/damage casued to C or their property
  • ie Customer slipping on yoghurt in Tesco -Ward V Tesco
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Loss Injury or Damage

  • The claimant must finally prove that the breach of duty caused them to suffer some Loss, injury or damage
  • Factual Causation
    • C must show it is more likely than not that had D not been negligent C's injury/damage would have not occurred .
    • If it was (probably) caused by something else or would have happened anyway = claim fail
      • Barnett V Chelsea & Kensington Hospital
  • Legal Causation
    • Law also requires a reasonable forseeability of the kind of damage actually caused- even the most reasonable person cannot be expected to guard against a risk that cannot be foreseen
      • Wagon Mound
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loss injury or damage cont

  • Legal Causation cont..
    • It is the kind  of damage that must be forseeable- NOT its exact nature or extent
    • If some damage was a forseeable result of D's negligence, he is liable for all damage of that kind even if it was more serioys than anyone could have foreseen
      • Bradford V Robinson Rentals 1967
    • 'Eggshell Skull rule'  ensures that if some personal injury was forseeable, D is liable for the full extent of C's injuries even if C was particularly suscpetible
      • Smith V Leech Brain
  • Novus Actus Interveniens -  Can sometimes cause issues if there is a new intervening act
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