Tort of Negligence

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  • Created by: _laurenb
  • Created on: 26-05-15 19:07

Neighbour Principle

Neighbour principle:

'you must take reasonable care to avoid act or omissions which you can reasonably foresee to injury a neighbour'

Neighbour:

'someone who is so closely and directly affected by your actions that you must take this into consideration when thinking of the act or omission'

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Neighbour Principle

DONOGHUE V STEVENSON:

  • claimant found a decomposed snail in drink
  • suffered with gastroenterisis
  • sued the manufacturers claiming that they owed her a duty of care
  • they had not fulfilled this duty
  • claimant was a neighbour to the manufacturers as she closely and directly affected by their actions in making the drink

The neighbour principle was established in this case

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Caparo 3 - Part Test

Developed in CAPARO V DICKMAN

A three part test:

1. Was the damage/harm foreseeable?

2. Was there sufficient proximity between the claimaint and the defendant?

3. Is it fair, just and reasonable to impose a duty of care?

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Caparo 3 - Part Test : Reasonable Foreseeability

KENT V GRIFFITHS

  • ambulance agreed to arrive at scene of asthma patient
  • took a long time to arrive
  • the patient suffered from a heart attack
  • it was reasonably foreseeable that late arrival would cause the claimant to suffer harm
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Caparo 3 - Part Test : No Reasonable Foreseeabilit

BOURHILL V YOUNG

  • a speeding motorcyclist crashed into a car
  • he died
  • pregnant woman was not present at the time of the crash
  • she arrived at the scene after
  • she suffered with shock after seeing the blood on the road
  • she had a still birth
  • she claimed against the motorcyclists estate
  • it was established that the defedant could not have reasonably foreseen that his reckless driving could have caused the still birth of an individual who was not even at the scene of the crime
  • claim rejected
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Caparo 3 - Part Test : No Sufficient Proximity

HILL V CHIEF CONSTABLE OF WEST YORKSHIRE

  • defendant was mother of victim of a serial killer
  • she claimed against the police stating they owed her daughter a duty of care
  • she said that, by not protecting her when they knew the defendant was likely to kill again, they were not providing this care
  • it was established that there was no sufficient proximity between the victim and the police 
  • they knew that the killer was likely to kill again
  • but had no way of determining that he would kill her
  • lack of proximity = no duty of care owed
  • claim rejected
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Caparo 3 - Part Test : Sufficient Proximity

OSMAN V FERGUSON

  • police were aware the victim of murder was being harrassed and followed by the murderer
  • they did not offer any type of special protecttion to the victim
  • the victim's father was killed by the murderer
  • the victim was seriously injured by the murderer
  • there was sufficient proximity as they knew the risk of attack on the specific boy
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Caparo 3 - Part Test : Fair, Just & Reasonable

CAPITAL AND COUNTIES PLC V HAMPSHIRE COUNTY COUNCIL

  • fire fighters attended the scene of the burning house
  • fire officer ordered sprinkler system to be turned off
  • the fire then spread
  • the damage caused more damage than would have been caused if the sprinkler system was left on
  • it was fair, just and reasonable to impose a duty of care upon the fire brigade - this was their job!
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The Reasonable Person

BLYTH V BIRMINGHAM WATERWORKS

  • the courts must question whether the defendant of a case acted in the way a reasonable person would in that given situation
  • a test for this reasonableness was developed in Blyth V Birmingham Waterworks
  • here, it was stated that:
  • 'negligence is the omission to do something which a reasonable man would do or doing something which a reasonable man would not do'
  • the definition therefore covers both acts and omissions
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Reasonable Person Case

NETTLESHIP V WESTON

  • defendant was taken for a driving lesson by claimaint
  • defendant crashed into lamp post
  • claimaint's knee was fractured 
  • claimaint claimed compensation
  • defendant declared that the standard of care for a learner driver should be lower
  • it was established that the driver is expected to meet the same standard of that of a reasonable and fully qualified driver
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Breach of Duty - Professional Persons

  • an individual with professional skill is expected to provide a standard of care which would normally be applied by others in the same profession
  • so a doctor would be expected to provide the same standard of care as another doctor
  • established in BOLAM V FRIERN HOSPITAL MAMAGMENT COMMITTEE
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Breach of Duty - Children

  • the conduct of a child is compared to the conduct of a reasonable child of the same age

MULLINS V RICHARDS

  • two 15 year old girls played with rulers
  • one ruler broke
  • a piece flew up and blinded one of the girls
  • the other girl was not found to be liable
  • this was because a reasonable child of 15 would not have foreseen the risk of injury by playing with the ruler
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Degree of Risk

ROE V MINISTER OF HEALTH

  • glass containers used to store anaesthetic
  • these invisibly cracked
  • the hospital using them did not know this
  • a man became paralysed after receiving contaminated anasthetic
  • it was decided that there was no duty of care owed
  • this was because the harm was not foreseeable
  • no duty of care = no breach of that duty
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Degree of Probability of Harm

HALEY V LONDON ELECTRICITY BOARD

  • LEB dug up the road
  • they placed signs around the holes but no barriers
  • they knew the road was used by the blind
  • there was a high risk of harm occuring which a reasonable person would have taken precautions to avoid
  • defendants therefore found liable

BOLTON V STONE

  • batter hit ball out of stadium
  • ball hit someone
  • batter was far away from the edge of the stadium which was surrounded by a high fence
  • the risk was so small that a reasonable person would have disregarded it
  • the defendants were therefore not found liable
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Seriousness of the Harm

PARIS V STEPNEY BOROUGH COUNCIL

  • defendant gave employee task of welding
  • employee was already blind in one eye
  • defendant gave employee no goggles
  • employee was left completely blind when a fragment of metal flew into his good eye
  • the seriousness of harm for this claimant is greater than for most as losing sight from his good eye meant losing sight completely
  • more serious = higher standard of care
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Cost & Practicality of the Prevention of the Risk

  • The precautions taken to avoid a risk from occuring must be proportianate to the extent of the risk
  • This means that is the extent of the risk is very high, a lot of money and extensive precautions much be taken to avoid this risk

LATIMER V AEC LTD

  • factory floor flooded
  • factory owners (defendants) put sawdust on floor to reduce risk of slipping
  • employee slipped and was injured
  • claimed compensation
  • it was stated that the defendants had taken practical care to avoid slipping
  • the next option would have been closing the factory which was not only impractical, but disproportiante to the extent of the risk
  • if the extent of the risk was higher, such as a risk of an explosion, the defendants would have been expected to take larger precautions
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The Benefits of Risk Taking

  • sometimes risks have potential benefits for society
  • in this case, the risk involved was not great enough to prohibit the benefit (the benefit is more important)

WATT V HERTFORDSHIRE COUNTY COUNCIL 

  • heavy equipment was loaded quickly onto firetruck in order to arrive at the scene of a fire quickly
  • it was not secured
  • fell on a worker and injured him
  • it was held that the benefit of arriving to aid was more important than the risk imposed upon the injured
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Damage - 'but for' test

BARNETT V CHELSEA AND KENSINGTON HOSPITALS

  • man went to hospital after suffering from stomach pains
  • he was turned away and told to visit his own doctor
  • he died from arsenic poisoning
  • this wife claimed compensation against the hospital
  • she stated the doctor that turned her husband away owed him a duty of care
  • he had breached this duty by not treating him
  • however, it was shown that 'but for' the act of the doctor, the husband still would have died
  • this was because the arsenic had already taken affect before he arrived at the hospital
  • claim failed
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Damage - Remoteness of Damage

CROSSLEY v RAWLINSON

  • defendant started a fire
  • claimant was not present but ran towards with fire extinguisher
  • aimed to extinguish the fire
  • claimant tripped, fell and was injured
  • claimed against the defendat
  • it was held that the injuries caused to the claimant were too remote from the defendant's conduct of starting the fire
  • claim failed
  • if the claimant had have been burnt by the fire, this would not have been too remote from the defendant's conduct and so he would have most likely succeeded in his claim
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Damages - Thin Skull Rule

SMITH V LEECH BRAIN AND CO.

  • defendant's negligence caused a man a burned lip by molten metal
  • the man had a pre-existing cancerous condition
  • the burn on his lip brought about full cancer
  • he died from this cancer
  • the defendant was found liable for this death
  • a defendant must take his victim as he finds him
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Damages - Foreseeability

HUGHES V LORD ADVOCATE

  • workers left a manhole unattended
  • they placed a tent over it
  • and parrafin lamps around it
  • young boys played in the man hole
  • they knocked over the parrafin lamps
  • this caused an explosion
  • the claimant was badly burnt
  • it was stated that the risk of children playing in the hole and being burnt by the lamps was foreseeable 
  • the explosion did not have to be foreseeable for the defendants to be found liable of the claimant's injuries 

A DEFENDANT IS LIABLE IF THE TYPE OF INJURY CAUSED IS FORESEEABLE, EVEN IF THE PRECISE WAY IN WHICH IT OCCURS IS NOT FORESEEABLE.

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Burden and Standard of Proof

Burden of Proof:

the claimant must prove a duty of care, a breach of this duty and damage

(this will move to the defendant in cases of res ipsa loquitur)

Standard of Proof:

the judges decide who is most likely to be right

(on the balance of probabilities = most likely)

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Res ipsa loquitur

  • things speak for themselves
  • used when it is clear that negliegence has occured, yet it is not sure how

the claimant must prove that:

1. the defendant was in control of the situation which caused the damage

2. the damage was most likely caused by the negligence of the defendant

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Res ipsa loquitur Case

SCOTT V LONDON AND ST KATHERINE DOCKS

  • claimant hit by bags of sugar that fell from defendant's warehouse
  • claimant was unaware of what had happened to make the bags of sugar fall
  • it was clear that the defendant was in control of the situation that caused the damage as it was his warehouse
  • it was also clear that the falling of the sugar bags was likely to be caused by negligence from the defendant
  • it was then left for the defendant to prove that they had not been negligent
  • and so the burden of proof moved from the claimant to the defendant
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