- Created by: amanda woodruff
- Created on: 07-06-10 19:09
Negligence is defined in the case Blyth V Birmingham Waterworks Co as 'the omission to do something which the reasonable man, guided upon those considerations would do, or doing something which the prudent and reasonable man would not do.'
Donoghue V Stevenson set out the neighbour principle. This is when the court considersto whom a duty of care is owed to; that is to anyone the consequences could directly affect.
Duty of Care
To establish if a duty of care is owed the courts use the three part Caparo V Dickman test.
The first part is Foreseeability: Is it forseeable to someone in the defendant's position that someone in the claimants position might be injured?
Kent V Griffiths : it would be reasonably foreseeable that someone making a 999 call may be further injured if the ambulance is delayed or does not turn up.
The second part is proximity: this is when there is space, time or relationship.
Bourhill V Young : There was no proximity because she went to to the accident after it had happened and it was in a differnet location to where she was. There was also no proximity in relationship.
McLoughlin V O'Brien: There was a proximity in relationship as the claimant was related to victims of the crash.
The second part is reasonableness: is it fair, just and reasonable to impose a duty of care. This usually just a public policy matter.
Hill V Cheif Constable of West Yorkshire: unfair to impose duty of care as the defendant had interviewed the murderer and felt no danger to release him.
Breach of duty
Once it has been established a duty of care exsists the claimant must then prove that the defendant has broke the duty of care by failing to reach the standard of care required.
The standard of care is that of the reasonable man in the condtions of that activity. Blyth V Birmingham Waterworks Co.
The reasonable man test is an objective test and looks at how the reasonable person would act in the given situation.
However, there are some groups judged differently.
Learners: Nettleship V Western driving learners are expected to drive at the same standard of a normal driver.
Specailists: any person doing a specialists skill is required to use and specialists skills that would be required with the job. Bolam V Friern.
Children: should be at the same standard of someone their own age. Richard V Mullins.
Factors affecting the standard of care
Size of the risk: the bigger the risk the size the higher the standard of care.
Bolton V Stone: The risk was small as it was rare for the tennis ball to cause an accident so the standard of care was lower.
Hayley V London Electricity Board: The size of the risk was high as there was a bigger chance of someone blind living in the neighbourhood, therefore the standard of care was increased to a higher standard.
Practical precautions: have all practical precautions been taken?
Latimer V AEC: All practical precautions were taken after the flood as signs were put up and sawdust was laid down, therefore the standard of care was lowered.
Benefits of taking the risk: if the benefit outwieghs the risk then the standard of care is lowered.
Watt V Hertfordshire County Coucil: the benefit of saving a womans life outweighed the risk of a firefighter being injured when using a unstainable vechile in an emergency.
Special characteristics of claimant: If the claimant has any special characteristics then the standard of care should be raised.
Paris V Stepney Borough Council: the claimant had only the use of one eye so he should have been supplied with googles as the standard of care would have been raised.
There are two parts to damage: causation and remoteness.
Causation is the idea that the defendant must have caused the loss that is complaied of. This is causation in fact.
Remoteness is concerned with whether the loss or damage is reasonably foreseeable. This is causation in law.
Both parts of causation must be proved.
Causation in fact
Causation in fact is determined by the 'but for' test.
The test is satisfied if it can be said 'but for the defendants acts or omissions the claimant would not have suffered the loss or harm'
Barnett V Chelsea and Kensington when in fact the hospital could not have to done anything to save the patients life. The cause of death was resulting from the poision taken not the hospitals failure to examine him properly.
Intervening Acts: can break the chain of causation. It is a new distinct act from the defendants act and coould mean the defendant is not liable. Whether it will break the chain and prevent liabiliy is based on if the damage was a foresseable consequence of the original act or not.
Smith V Littlewoods not foreseeable that vandals were to break into a unoccupied but secure building so therefore the new intervening act was not foreseeable and the defendant not liable.
Multiple acts: Sometimes there maybe more than one possible cause of the harm or loss. Therefore when considering this the court will look at if the defendent made the substantial contribution. This is judged on the balance of probabilities.
Wilsher V Essex Area Health Authority when a premature baby was given too much oxygen and was caused permanent blindness but there were a possible of five other causes so had 20% chance og being the cause.
McGhee V National Coal Board when the defendant failed to supply a shower which resulted in the claimant developing dematris. However this was the substantial cause and so defendant was held liable.
Remoteness of damage
The defendant can only be held liable if the damage was a foreseeable consequence of the act. If it is not forseeable then it is too remote that is not connected to the act.
The wagon mound - when the damage caused by the oil was too remote as it was unforeseeable that the oil would set alight.
The type of damage must also be foreseeable even if it comes in an unusual form. Bradford V Robinson Rentals when it was foreseeable that the claimant could suffer damage from the cold so the defendant was liable even though the damage of a frostbite was unusual.
Exceptions of the reasonable forseeability test
The thin skull rule: This is when the defendant takes a person as they find them and the defendants liability will not be lessened just because the claimant had a pre - exsisting condition that made the injuries worse.
Smith V Leech Brain and co ltd when the claimant suffered a inor burn on his face and it triggered a pre-exsisting cancerous condition which later developed and later died.
Burden of proof
The claimant must prove his claim on a balance of pobability.
They must demonstrate that it is 'more likely than not' that the defendant has been negligent.
It is the obligation of the party to establish the facts in issue in a case to the required degree of certainty.
2 exception to burden of proof
1) the defendant has already been convicted on a criminal charge based on the same event. The claimants case on negligence will be satisfied as the jury has already been satisfied that the defendant caused a wrongful act beyond reasonable doubt which is a higher standard. Therefore the onlt issue for the court is damages to be awarded.
2) Res Ipsa Loquitor: this means literally speaks for itself and shifts the burden of proof from the claimant. The idea is that the accident causing the damage would not have occured unless someone had been negligent and the thing that caused the accident was wholly under the control of the defendant. Three part test: The thing that caused the harm was wholly under the control of the defendant, The injury would not have occured unless the defendant had been negligent and there is no other explanation of the injury caused to claimant.
Mohan V Osborn when the claimant died due to a swab being left inside his body.