Law - Tort - Simple Negligence

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  • Created on: 09-04-12 14:44

Simple Negligence

Duty -

A duty may sometimes arise through precedent, like in the case of road users or doctors. In this situation duty does not have to be established through the Caparo test.

Caparo v Dickman - 

This was a leading case in negligence law; in this case the neighbour test, first established in Donoghue v Stevenson, was replaced with the three-part test: 

1. Was some loss to the claimant due to the defendant's conduct reasonably foreseeable

Case law:  Kent v Griffiths - it was foreseeable that if the ambulance was late, harm could be caused to the patient (in this case, they suffered a heart attack).

2. Was there proximity between the claimant and defendant (in time, space or relationship)? 

Case law: Bourhill v Youngthere was no proximity in space as the claimant was away from the motorcycle accident at the time it occurred; she voluntarily went to see the aftermath which induced her miscarriage. 

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

Case law: Osman v Ferguson - it was held that the police did not owe a duty of care to the family. The police could not be expected to keep watch for 24 hours a day to make sure this teacher, who had formed an unhealthy relationship with the claimant's 14-year-old son, did not do something dangerous (which he did).

Breach -

It must be established that the defendant's duty has been breached. In doing this, we should objectively compare the defendant to a 'reasonable man'. The case for this is Blyth v Birmingham Waterworks, where Baron Alderson stated that falling below the standard of the reasonable man could be defined as 'the omission to do what the reasonable man would do, or doing something the reasonable man would not do'. 

However, there are other situations where we may need to lower/higher the expectation. 

Experts, such as doctors, should be compared to other expert(s) in their field. Bolam illustrates this, where the test states 'if a doctor reaches the standard of a responsible body of medical opinion, he is not negligent'.

Learner drivers will be expected to come up to the standard of a competent driver - Nettleship v Weston.

Children would be expected to not fall below the standard of a reasonable child their age. Orchard v Lee illustrates this, where a child, the defendant, knocked the claimant (dinner lady) over, breaking her arm, whilst engaging in horseplay. It was held he did not fall below the standard expected of a reasonable child his age. 

There are a range breach factors that can be explored when the courts are testing whether a duty has been breached, including: 

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