Law Unit 2 - Civil

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Duty of Care

In Donoghue v Stevenson, Lord Atkin established the 'neighbour principle' -test for deciding the existence of a duty of care. He said "you must take care to avoid acts and omissions which you can reasonably forsee may injure your neighbour".

If a new situation arises, courts adopt the 3-part test (Capro v Dickman). First part is if the harm is reasonably forseeable. (Bourhill v Young) - not reasonably forseeable that a pregnant woman who heard a motorbike crash would suffer a miscarriage from shock. (Langley v Dray) - reasonable that police could crash his car during a high speed persuit of a criminal.

Secondly, there must be proximity (close relationship) between D and V. If there is a physical injury, courts can find physical proximity -V is part of the event (time & space). (Bourhill v Young) - V suffered nervous shock, not part of the accident -no physical proximity. (Watson v BBBC) - V could show professional proximity as he was fighting under BBBC regulations.

Finally, it must be fair just & reasonable to impose a DOC. In some cases, there are policy reasons why it is not, as the courts are concerned that any extension to the types of claims that you could be brought would open 'floodgates of litigation'. Sometimes, police & rescuers are exempt. (Hill v Chief Constable of W Yorkshire) - court said it wouldn't be fair for police to owe a DOC to victims. (Kent v Griffiths) - fair for ambulance service to owe a duty of care to a patient.

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Duty of Care - Application

The defendant will owe the claimant a duty of care in this situation (what the situation is) if the three-part test can be proved.

The first part is whether the harm (what the harm is - personal injury/damage to property/both) is reasonably forseeable in this situation (what the situation is and if the harm is forseeable or not).

Secondly, there must be proximity (close relationship) between the defendant and the claimant. Here, the courts are likely to find physical proximity as the claimant is part of the event/accident (what the accident is) so there is proximity in terms of time and space. (If appropriate - could/could not prove physical proximity).

Finally, it must be fair, just and reasonable to impose a duty of care upon the defendant. Here, there are no policy reasons why it is not fair, just and reasonable to impose a duty of care as there is no risk that this would open the 'floodgates of litigation'.

If all tests are proved, the court will conclude that the defendant owes the claimant a duty of care.

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Breach of Duty

A breach of duty occurs when D falls below standard expected of a reasonable man in that situation (Blyth v Birmingham Waterworks). The 'reasonable man ' is the person performing the task (objective test). (Wells v Cooper) - householder performing a DIY task -judged by standard of reasonably competent person attaching a door handle. Learner drivers -judged by standard of a reasonably competent driver. Professionals (doctors) -judged by standard of a reasonably competent professional (using a known procedure) (Bolam v Friern Barnet HMC). Children -judged by standard of a reasonably competent child (Mullins v Richards).

Courts look at risk factors to decide what is reaonable. Firstly, the magnitude/size of the risk. The higher the risk, more likely courts decide there has been a breach. (Paris v Stepney) - the one-eyed mechanic was owed a greater DOC due to the increased risk of blindness.

Court considers the cost of prevention. (Bolton v Stone) - to stop cricket balls escaping was to build a dome over the ground (expensive). (Latimer v AEC) - practicality of precautions considered. Company took reasonable precautions after flooding, not in breach of their duty.

Children are owed a higher duty than adults. Disabled people are owed a higher duty than able-bodied. In deciding if precautions taken are reasonable, the court look at general common practise in that area (Mullins v Richards). If the activity is of value (rescue attempt), the reasonable man can take risks (Watt v Herefordshire) - fire engine was rushing to the accident.

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Breach of Duty - Application

A breach of duty occurs when the defendant falls below the standard expected of a reasonable man performing... (what they did). Here, the defendant has the special characteristics that are young/professional/learner (or no special characteristics).

The courts look at factors to decide what is reasonable. Here, there is a high risk of harm occurring as... (look for high risk). As there is a big risk, it is more likely that the courts will decide there has been a breach. Here, the cost of prevention is small because... As the cost of prevention is small, it is more likely that there has been a breach. Here, it is easy to prevent the risk because... As it is reasonably practical, it is more likely that the courts will decide that there has been a breach.

There is no benefit from taking the risk and other factors are not relevant here. On this basis, the defendant has breached their duty of care to the victim.

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Res Ipsa Loquitur

Res ipsa loquitur is Latin for 'the facts speak for themselves'. Sometimes, the facts of a case mean that something could not have happened unless there was negligence. (Scott v London & St Katherine's Docks) - claimant was injured by some bags of sugar which fell from defendant's warehouse. There was no evidence of negligence but Court of Appeal held that negligence could be inferred under res ipsa loquitur.

Under normal circumstances, the claimant usually has the burden of proving that the defendant was in breach of their duty. If res ipsa loquitur applies, the burden of proof shifts to the defendant who then needs to prove he was not negligent or that there was another explanation.

For res ipsa loquitur to apply, the claimant has to show three things. Firstly, that what caused the damage was wholly under the control of the defendant. (Gee v Metopolitan Railway) - negligence could be inferred because the claimant fell out of the door after the train left the station. Next, the claimant must show that the accident that caused damage wouldn't have happened unless someone was negligent. Finally, there must be no other explanation - if there is evidence of negligence, the courts will examine that rather than rely on res ipsa loquitur.

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For a successful negligence claim, there must be damage (loss from a breach of the DOC). This can be injury (physical/mental) or damage to property. (R v Croyden Health Authority) - no damage when C wanted a healthy child and got one.

The breach must cause damage so courts consider factual causation. (Barnett v Chelsea and Kensington Hospital) - patient died after negligent treatment. But, he died from arsenic poisoning instead. So hospital did not cause his death so were not liable. Sometimes, there may be mulitple causes of damage (normal rule is modified). (Fairchild v Glenhaven Funeral Services) - were 'special circumstances' where the C's were exposed to asbestos by a number of D's. Court said the increased risk amounted to proof of causation and they were all liable.

For legal causation to be established, there must be no break in the COC. (Thompson v Blake James) - doctor advised the parents against measles injection for their child, but wasn't responsible for child's illness as mother relied on advice from elsewhere.

The courts ask whether the harm was reasonably forseeable. (Wagon Mound) - unforseeable that a ship spilling some oil would lead to a spark igniting oil and setting fire to ship (fire was too remote. Using this test, only the type of injury that has to be forseeable, not the precise manner which it occurred. (Hughes v Lord Advocate) - burns suffered were expected.

Finally, the courts consider the thin skull rule. (Smith v Leech Brain) - the claimant was burned on the lip by molten metal. This caused cancer which resulted in his death. The defendants were responsible for their burn and death as it caused the cancer.

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Damage - Application

For a successful negligence claim, there must be damage (loss resulting from a breach of the duty of care). Here, the damage is personal injury/damage to property to the claimant who has suffered...(what they suffered) and damage to the claimants property...(the damage caused).

The breach must cause the damage so the courts first consider factual causation. Here, but for the defendant's negligence (what the negligence was), the claimant would not have suffered the accident/damage to property so factual causation is proved. Here, there is no break in the chain of causation so legal causation is proved.

The courts will consider whether the damage caused was reasonably forseeable and not too remote. It was reasonably forseeable that the victim would suffer (what they suffered). The type of injury has to be forseeable, not the precise manner in which it occurred. Here, the type of injury is forseeable because... (why it is forseeable).

You must take your victim as you find them. The thin skull rule applies here because... (why it applies or why it doesn't apply).

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Following a claim for negligence, C makes an application for damages (financial compensation) -puts the C back in the position before the injury/damage occurred. C's losses are repaid and are compensated for future losses. C will usually only receive damages once.

There are two types of damages (general & special). Special are compensation for losses up to the point of trial. They apply to the C's personal circumstances. They include medical expenses, expenses suffered by another, loss of earnings up to the trail, and cost of damage to property (pecuniary) -they can be given an exact financial value, e.g-£350 for damage to the C's car.

General damages cover anythng that can't be given an exact financial value (non-pecuniary) -must be determined by judge in each case. They are difficult to calculate and judge consults guidelines supplied by Judicial Studies Board. Starting point is the injury suffered by C. Compensation is awarded for pain & suffereing - amount will depend on the extent of the pain.

Loss of amenity will also be compensated. This takes into account the effect of the injury on C's enjoyment of life and covers things like no longer being able to drive or play sports. Damages for future loss of earnings are also available and they will be based on C's current job, age and rate of inflation. As damages usually come as a lump sum, court takes into account the potential income from investing money. If the C has planned any career changes, they can be taken into account (Doyle v Wallace) - when C's hope to becoe a teacher was taken into account.

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