Duty Of Care
The first element is to prove that D owed C a duty of care. There may be a binding precedent!
1. Foreseeability of harm, must be foreseeable to a reasonable person. Paris v Stepney foreseeable damage to eyes whilst wheleding.
2. Proximity, must be between C and D. If they are close in terms of relationship, D has some control over and responsibility for the potentiall dangerous situation. Comes from neighbour test Donoghue v Stevenson. Also can use Hayley v LEB- blind man and manhole.
3. Fair Just and Reasonable, to impose a duty on D. This is not established by proving harm. Courts ask if there any policy reason why it not be fair to impose. Hill v Chief Constable of Yorkshire, unfair to impose duty on police to find unknown victim.
Breach Of Duty
D has breached his duty if his conduct falls below an acceptable standard.
- should meet reasonable person (Blythe).
- Or reasonable person in expert field (Bolam).
(doctors must come up to the standard of qualified GP)
-The standard of care will not be lowered for inexperience (Nettleship). ( junior doctors standard not lowered, Wilsher v Essex. Junior gave too much O2 to baby, and went blind)
- In medical cases, a doctor will not have breached his duty if a body of medical opinion finds it acceptable, even if some don't- Maynard, went wrong but some doctors said it was acceptable so no breach. However has to logical (Bolitho). 4 risk factors-
social unility, Watts v Herts /risk of harm Paris v Stepney/cost of precautions Latimer /seriousness of potential harm Pairs v Stepney.
(the courts will not hold a doctor in breach because of unavoidable risk with treatment - Hatcher v Black
Requires 2 Test to be proved:
Factual Causation, using the 'But For' test. But for D breach the damage would not have happened. Barnett not proved as he would have died anyway from the posioning.
Foreseeablity, type of damage is foreseeable. Wagon Mound wasn't foreseeable as spilt oil wouldn't set fire to whraft.
If the damage occurs in unforseeable way still lilable. Hughes through explosion not fire.
Unforeseeable extent, D still liable. Smith suffered cancer knew injury could occur so stil lilable. Apply the thin skull rule and take victim as you find them.