Negligence:
Three things need to be proven:
1. The defendant owed the claimant a duty of care
2. The defendant breached the duty of care
3. The breach of duty caused the damage AND that damage was reasonably
foreseeable
(1)Duty of care;
The neighbour principle (Donoghue v Stevenson) - You have a duty of care to anyone you
ought to have in mind who might be affected by your actions.
a) Was the damage or harm reasonably foreseeable? (Kent v Griffiths)
b) Proximity of relationship must be sufficiently close or proximate (Bourhill v Young
BUT McLoughlin v O’Brien)
c) Fair, just and reasonable to impose a duty (Hill v Chief Constable of West Yorkshire)
(2)Breach of duty of care;
- Professionals are judged against the standard expected by their profession (Bolam v
Friern Barnett Hospital Management Committee)
- Learners are judged against the standard of the more experienced person (Nettleship
v Weston)
- Children and young people are judged against the standard of a reasonable person
of their age (Mullin v Richards)
Risk factors -
- Special characteristics (Paris v Stepney Borough Council)
- Size of risk (Bolton v Stone / Haley v London Electricity Board)
- All appropriate precautions taken (Latimer v AEC LTD)
- Knowledge of risk (Roe v Minister of Health)
- Public benefit in taking the risk (Day v High performance sports)
(3)Resultant and foreseeable damage;
Causation-
- Factual causation; BUT FOR test (Barnett v Chelsea and Kensington Management
Committee)
- Multiple concurrent causes (McGhee v National Coal Board BUT Wilsher v Essex
Health Authority)
- Intervening act
Remoteness of damage-
- The damage must not be too remote, must be reasonably foreseeable (The Wagon
Mound)
- D will be liable if the type of injury was reasonably foreseeable even if the way it
occurred was not (Hughes v Lord Advocate / Bradford v Robinson Rentals)
- The court may not feel that the injury is reasonably foreseeable (Doughty v Turner
Asbestos)
The eggshell skull rule-
- If the type of damage is reasonably foreseeable but is much more serious because C
has a pre-existing condition then D will be liable for all the consequences (Smith v
Leech Brain and Co.)
, Psychiatric injury;
- Must be a recognised actual psychiatric condition (Tredget v Bexley Health
Authority / Vernon v Bosley)
- The person claiming must fall into a category acceptable to the courts:
- Primary victims; present at the scene and either injured or at risk of injury, only needs
to be foreseeable of some harm not necessarily psychiatric (Dulieu v White)
- Secondary victims; present at the scene (but not at risk of harm) or present at
immediate aftermath, must satisfy Alcock criteria and the threshold test:
(1) Alcock criteria - close ties of love and affection with the victim of the incident
(Hambrook v Stokes Bros / Dooley v Cammell Laird / Owens v Liverpool
Corporation), must experience or witness the incident or immediate aftermath
(McCloughlin v O’Brien / King v Phillips / Bourhill v Young), claimant must
show witnessing or hearing of the incident caused the psychiatric harm
(2) Threshold test; a reasonable person in that position would have suffered the
shock.
- Rescuers; can claim if they are actively involved (Chadwick v British Rail) and put
themselves at risk or if they are secondary victims and can satisfy the Alcock criteria
and threshold test (White v Chief Constable of South Yorkshire)
- Bystanders; cannot claim if merely witness (McFarlane v EE Caledonia)
- Property owners; not at risk physically but present when property destroyed (Attia v
British Gas)
Economic loss;
When you suffer loss from someone's negligence you can claim for personal injury and
damage to property.
- General rule of pure economic loss; cannot be claimed for (Spartan Steel v Martin)
UNLESS the loss has been caused by a negligent misstatement rather than a
negligent act (Hedley Byrne v Heller).
- Negligent misstatement: statement made negligently and special relationship.
- Special relationship (Caparo v Dickman):
(1) Special skill or expertise
(2) Reliance on the advice
(3) Advice given directly
(4) Knowledge of the purpose for the advice
(5) No disclaimer
DEFENCES TO NEGLIGENCE:
- Contributory negligence (partial defence);
(1) D must show that C failed to take reasonable care for his own safety
(2) AND that negligence of C was a cause of the harm suffered (Jones v Livox
Quarries).
- Volenti non fit injuria (consent);
(1) C had knowledge of the precise risk involved (Sterner v Lawson)
(2) C exercised free choice (Smith v Baker)
(3) C voluntarily accepted the risk
Three things need to be proven:
1. The defendant owed the claimant a duty of care
2. The defendant breached the duty of care
3. The breach of duty caused the damage AND that damage was reasonably
foreseeable
(1)Duty of care;
The neighbour principle (Donoghue v Stevenson) - You have a duty of care to anyone you
ought to have in mind who might be affected by your actions.
a) Was the damage or harm reasonably foreseeable? (Kent v Griffiths)
b) Proximity of relationship must be sufficiently close or proximate (Bourhill v Young
BUT McLoughlin v O’Brien)
c) Fair, just and reasonable to impose a duty (Hill v Chief Constable of West Yorkshire)
(2)Breach of duty of care;
- Professionals are judged against the standard expected by their profession (Bolam v
Friern Barnett Hospital Management Committee)
- Learners are judged against the standard of the more experienced person (Nettleship
v Weston)
- Children and young people are judged against the standard of a reasonable person
of their age (Mullin v Richards)
Risk factors -
- Special characteristics (Paris v Stepney Borough Council)
- Size of risk (Bolton v Stone / Haley v London Electricity Board)
- All appropriate precautions taken (Latimer v AEC LTD)
- Knowledge of risk (Roe v Minister of Health)
- Public benefit in taking the risk (Day v High performance sports)
(3)Resultant and foreseeable damage;
Causation-
- Factual causation; BUT FOR test (Barnett v Chelsea and Kensington Management
Committee)
- Multiple concurrent causes (McGhee v National Coal Board BUT Wilsher v Essex
Health Authority)
- Intervening act
Remoteness of damage-
- The damage must not be too remote, must be reasonably foreseeable (The Wagon
Mound)
- D will be liable if the type of injury was reasonably foreseeable even if the way it
occurred was not (Hughes v Lord Advocate / Bradford v Robinson Rentals)
- The court may not feel that the injury is reasonably foreseeable (Doughty v Turner
Asbestos)
The eggshell skull rule-
- If the type of damage is reasonably foreseeable but is much more serious because C
has a pre-existing condition then D will be liable for all the consequences (Smith v
Leech Brain and Co.)
, Psychiatric injury;
- Must be a recognised actual psychiatric condition (Tredget v Bexley Health
Authority / Vernon v Bosley)
- The person claiming must fall into a category acceptable to the courts:
- Primary victims; present at the scene and either injured or at risk of injury, only needs
to be foreseeable of some harm not necessarily psychiatric (Dulieu v White)
- Secondary victims; present at the scene (but not at risk of harm) or present at
immediate aftermath, must satisfy Alcock criteria and the threshold test:
(1) Alcock criteria - close ties of love and affection with the victim of the incident
(Hambrook v Stokes Bros / Dooley v Cammell Laird / Owens v Liverpool
Corporation), must experience or witness the incident or immediate aftermath
(McCloughlin v O’Brien / King v Phillips / Bourhill v Young), claimant must
show witnessing or hearing of the incident caused the psychiatric harm
(2) Threshold test; a reasonable person in that position would have suffered the
shock.
- Rescuers; can claim if they are actively involved (Chadwick v British Rail) and put
themselves at risk or if they are secondary victims and can satisfy the Alcock criteria
and threshold test (White v Chief Constable of South Yorkshire)
- Bystanders; cannot claim if merely witness (McFarlane v EE Caledonia)
- Property owners; not at risk physically but present when property destroyed (Attia v
British Gas)
Economic loss;
When you suffer loss from someone's negligence you can claim for personal injury and
damage to property.
- General rule of pure economic loss; cannot be claimed for (Spartan Steel v Martin)
UNLESS the loss has been caused by a negligent misstatement rather than a
negligent act (Hedley Byrne v Heller).
- Negligent misstatement: statement made negligently and special relationship.
- Special relationship (Caparo v Dickman):
(1) Special skill or expertise
(2) Reliance on the advice
(3) Advice given directly
(4) Knowledge of the purpose for the advice
(5) No disclaimer
DEFENCES TO NEGLIGENCE:
- Contributory negligence (partial defence);
(1) D must show that C failed to take reasonable care for his own safety
(2) AND that negligence of C was a cause of the harm suffered (Jones v Livox
Quarries).
- Volenti non fit injuria (consent);
(1) C had knowledge of the precise risk involved (Sterner v Lawson)
(2) C exercised free choice (Smith v Baker)
(3) C voluntarily accepted the risk
