Negligence Revision
Duty
- Robinson
o Existing precedent that directly deals with matter at hand
o Existing legal principles and apply them
o Novel case – develop the law incrementally and by analogy to the existing
legal principles
- Caparo v Dickman
o Foreseeability – AG v Hartwell – objectively determined
Bourhill v Young – claimant must be closely affected by d’s conduct
o Fair, just and reasonable to impose duty
Floodgates – Hill v Chief Constable
Insurance position – Nettleship v Weston
Whether D acts for the collective welfare – The Nicolas H
Act/Omission – Rigby v Chief Constable (operational) and Robinson.
Breach
1. Objective Standard of Care
o Nettleship v Weston
o Professionals are held to a higher standard
Vowles v Evans – reasonable person practising the profession
2. Foreseeability
o Roe v Minister of Health
3. Size/Magnitude of the Risk
o Bolton v Stone
o Miller v Jackson
o Harris v Perry – bouncy castle
4. Practicality of precautions
o Wagon Mound No. 2
o Latimer v AEC Ltd – saw dust factory case.
5. Special characteristics of the claimant
o Paris v Stephney Borough Council
6. Special Characteristics of Defendant
o Mullin v Richards – 15-year-old girl ruler game
o Ochard v Lee – boy running into supervisor in playground
o Knight v Home Office – prison suicide case. Not liable
7. Potential benefit/utility of D’s conduct
o Watt
o The Scout Association v Barnes
--
Res Ipsa Luqitor
1
,Causation - Factual
1. ‘But For’ Test
o Barnett v Chelsea and Kensington Hospital
o Hypothetical factors relevant – McWilliams v Sir William Arroll
2. Multiple Causes - All or Nothing Basis
o Wilsher v Essex AHA – C must prove, on a balance of probabilities that D’s
breach was a material cause of the injury
3. Loss of Chance
o Hoston v East Berkshire AHA – C must prove causation on a balance of
probabilities, negligence caused the injury more than 50%.
o Gregg v Scott – chance of survival was never more than 50%.
4. Differences in Opinion
o Bolam Test – as long as doc. Proves a responsible body would agree
o Bolitho – Bolam applies, but court needs to satisfy itself with method used.
5. The vindication of Rights approach
o Chester v Afshar - (3:2) majority – policy reasons. Doctor is obliged to tell
patient about any potential significant complication from treatment. Right of
informed consent.
6. McGhee/Fairchild Principle
o where the facts are such that the ‘but for’ test cannot be reasonably or fairly
applied, the ‘materially increased risk’ of harm test may be used
applied where there is only one causal agent
when it is impossible to scientifically apportion the damages
Sienkiewicz v Greif – Asbestos exception because of the
Compensation Act 2006.
Damages – apportioned on employers - Baker v Corus
Legal Causation (Remoteness)
I. Wagon Mound No. 1 – damage suffered by the claimant reasonably foreseeable
Novus Actus Interveniens
II. By a third party
o Will not break if it is a natural or instinctive intervention – Scott v Shepherd
o Negligent intervention
Will not break if it is a r. foreseeable consequence (Rouse v Squires)
Will break if it is not reasonably foreseeable (Knightly v Jones)
o Medical Intervention
Will only break if it is ‘so grossly negligent as to be a completely
inappropriate response to injury inflicted by D’ – Wright v Cambridge
Medical Group
III. By the claimant
o C’s unreasonable conduct may break the ‘chain of causation’
McKew v Holland – stairs without handrail
Spencer – decapitated leg, left car no crutches, reasonable. Paralysis.
o If one has a duty to prevent X, they cannot argue that if X happens that breaks
the chain of causation
2
, Reeves v Metropolitan Police – suicide in cell – was foreseeable
Defenses
1) Contributory Negligence
a. Law Reform (Contributory Negligence) Act 1945
2) Consent
a. Baker v TE Hopkins – Rescuers do not consent to harm
b. Woooldridge v Sumner – Sporting events
c. Morris v Murray – getting into a car with drunk friend
3) Illegality/Public Policy
a. Patel v Mizra
Psychiatric Harm
MOST CASES FAIL IN ESTABLISHING A DUTY OF CARE.
Structure
Firstly, the claimant must have suffered psychiatric injury in the form of a recognized psychiatric
illness (White v Chief Constable of Yorkshire) not grief, anxiety, fright or any other ‘normal
vicissitudes of life (Reilly v Merseyside).
Duty of Care:
Alcock v Chief Constable of South Yorkshire
Defendant owes a duty to Primary victims
- Primary Victims:
o people who suffer psychiatric harm after being directly involved in the
accident. – Alcock
Duty is owed if:
o People who were exposed to physical danger, or who reasonably believe that
they were exposed to such danger, qualify as ‘primary’ victims – Alcock, Dulieu
v White
o C can be a primary victim based on a feeling of responsibility in bringing the
accident about (unwilling participant) – W v Essex County Council - this belief
must be ‘reasonable’ (Monk)
o Skull Rule applies in psychiatric harm - Page v Smith (minor car accident no
physical harm)
o Rescuers are primary victims given that they have been exposed to danger or
reasonably believed that they were in danger. (Monk)
If not, then rescuers and employees are secondary victims who have to
pass Alcock tests (White v Chief Constable of South Yorkshire)
3
Duty
- Robinson
o Existing precedent that directly deals with matter at hand
o Existing legal principles and apply them
o Novel case – develop the law incrementally and by analogy to the existing
legal principles
- Caparo v Dickman
o Foreseeability – AG v Hartwell – objectively determined
Bourhill v Young – claimant must be closely affected by d’s conduct
o Fair, just and reasonable to impose duty
Floodgates – Hill v Chief Constable
Insurance position – Nettleship v Weston
Whether D acts for the collective welfare – The Nicolas H
Act/Omission – Rigby v Chief Constable (operational) and Robinson.
Breach
1. Objective Standard of Care
o Nettleship v Weston
o Professionals are held to a higher standard
Vowles v Evans – reasonable person practising the profession
2. Foreseeability
o Roe v Minister of Health
3. Size/Magnitude of the Risk
o Bolton v Stone
o Miller v Jackson
o Harris v Perry – bouncy castle
4. Practicality of precautions
o Wagon Mound No. 2
o Latimer v AEC Ltd – saw dust factory case.
5. Special characteristics of the claimant
o Paris v Stephney Borough Council
6. Special Characteristics of Defendant
o Mullin v Richards – 15-year-old girl ruler game
o Ochard v Lee – boy running into supervisor in playground
o Knight v Home Office – prison suicide case. Not liable
7. Potential benefit/utility of D’s conduct
o Watt
o The Scout Association v Barnes
--
Res Ipsa Luqitor
1
,Causation - Factual
1. ‘But For’ Test
o Barnett v Chelsea and Kensington Hospital
o Hypothetical factors relevant – McWilliams v Sir William Arroll
2. Multiple Causes - All or Nothing Basis
o Wilsher v Essex AHA – C must prove, on a balance of probabilities that D’s
breach was a material cause of the injury
3. Loss of Chance
o Hoston v East Berkshire AHA – C must prove causation on a balance of
probabilities, negligence caused the injury more than 50%.
o Gregg v Scott – chance of survival was never more than 50%.
4. Differences in Opinion
o Bolam Test – as long as doc. Proves a responsible body would agree
o Bolitho – Bolam applies, but court needs to satisfy itself with method used.
5. The vindication of Rights approach
o Chester v Afshar - (3:2) majority – policy reasons. Doctor is obliged to tell
patient about any potential significant complication from treatment. Right of
informed consent.
6. McGhee/Fairchild Principle
o where the facts are such that the ‘but for’ test cannot be reasonably or fairly
applied, the ‘materially increased risk’ of harm test may be used
applied where there is only one causal agent
when it is impossible to scientifically apportion the damages
Sienkiewicz v Greif – Asbestos exception because of the
Compensation Act 2006.
Damages – apportioned on employers - Baker v Corus
Legal Causation (Remoteness)
I. Wagon Mound No. 1 – damage suffered by the claimant reasonably foreseeable
Novus Actus Interveniens
II. By a third party
o Will not break if it is a natural or instinctive intervention – Scott v Shepherd
o Negligent intervention
Will not break if it is a r. foreseeable consequence (Rouse v Squires)
Will break if it is not reasonably foreseeable (Knightly v Jones)
o Medical Intervention
Will only break if it is ‘so grossly negligent as to be a completely
inappropriate response to injury inflicted by D’ – Wright v Cambridge
Medical Group
III. By the claimant
o C’s unreasonable conduct may break the ‘chain of causation’
McKew v Holland – stairs without handrail
Spencer – decapitated leg, left car no crutches, reasonable. Paralysis.
o If one has a duty to prevent X, they cannot argue that if X happens that breaks
the chain of causation
2
, Reeves v Metropolitan Police – suicide in cell – was foreseeable
Defenses
1) Contributory Negligence
a. Law Reform (Contributory Negligence) Act 1945
2) Consent
a. Baker v TE Hopkins – Rescuers do not consent to harm
b. Woooldridge v Sumner – Sporting events
c. Morris v Murray – getting into a car with drunk friend
3) Illegality/Public Policy
a. Patel v Mizra
Psychiatric Harm
MOST CASES FAIL IN ESTABLISHING A DUTY OF CARE.
Structure
Firstly, the claimant must have suffered psychiatric injury in the form of a recognized psychiatric
illness (White v Chief Constable of Yorkshire) not grief, anxiety, fright or any other ‘normal
vicissitudes of life (Reilly v Merseyside).
Duty of Care:
Alcock v Chief Constable of South Yorkshire
Defendant owes a duty to Primary victims
- Primary Victims:
o people who suffer psychiatric harm after being directly involved in the
accident. – Alcock
Duty is owed if:
o People who were exposed to physical danger, or who reasonably believe that
they were exposed to such danger, qualify as ‘primary’ victims – Alcock, Dulieu
v White
o C can be a primary victim based on a feeling of responsibility in bringing the
accident about (unwilling participant) – W v Essex County Council - this belief
must be ‘reasonable’ (Monk)
o Skull Rule applies in psychiatric harm - Page v Smith (minor car accident no
physical harm)
o Rescuers are primary victims given that they have been exposed to danger or
reasonably believed that they were in danger. (Monk)
If not, then rescuers and employees are secondary victims who have to
pass Alcock tests (White v Chief Constable of South Yorkshire)
3
