NEGLIGENCE
CHECKLIST:
1. Duty of care.
2. Breach of duty.
3. Damage.
4. Defences.
5. Damages/remedies.
DUTY OF CARE:
- Establish duty of care using the Caparo test (Caparo v Dickman).
- Caparo test:
+ Was the harm reasonably foreseeable? (Kent v Griffiths).
+ Was there proximity? (Bourhill v Young).
+ Is it fair, just and reasonable to impose a duty of care on the defendant? (Hill).
- Where a duty of care has already been established in a similar situation (due to judicial
precedent), the Caparo test does not need to be applied. Instead, you can simply cite
Robinson v Chief Constable of West Yorkshire.
+ Also states that the police are not exempt from claims in negligence.
BREACH OF DUTY:
- A relevant case is the Alton Towers ‘Smiler’ case.
- Breach of duty is established using the Bolam test (for medical professionals) or the
standard of care test of a reasonable person, and assessing risk factors.
- Bolam test: Montgomery v Lanarkshire: a doctor is under the duty to inform their
patients of all associated risks.
- Standard of care for professionals: a professional is held at the standard of care of the
profession as a whole.
- Standard of care for learners: Nettleship v Weston: their status as a learner is irrelevant
and they are held at the same standard of care as a professional.
- Standard of care for young people:Mullin v Richards: held at the same standard of a
reasonable person of the same age as the individual at the time of the incident.
- Risk factors:
+ Special conditions (Paris v Stepney Council).
+ Size of the risk (Bolton v Stone).
+ Appropriate precautions (Latimer).
+ Unknown risks (Roe v Minister of Heath).
+ Public benefit (Day v High Performance Sports).
DAMAGE:
- Damage is proven through causation and remoteness of damage. Any pre-existing
conditions must also be taken into account.
- Causation: Barnett: did the defendant directly cause the claimant’s loss? If the claimant
would have suffered the loss anyway, then the defendant cannot be liable.
, - Remoteness of damage: the claimant cannot claim for damage that is too remote. The
type of injury must be reasonably foreseeable (Bradford v Robinson Rentals). If it is
not (Doughty v Turner Asbestos), the claimant cannot claim for it.
- Pre-existing condition:
+ Applying the ‘thin skull’ rule (defendant must take the claimant as they find them.
+ Bhamra v Dubb: therefore, if the claimant has a condition that makes them more
susceptible to harm than a reasonable person, the defendant will be held liable.
DEFENCES:
- Includes the following; contributory negligence, consent, warning signs and exclusion
clauses.
- Contributory negligence:
+ Partial defence.
+ For road traffic accidents, if the claimant does not wear a seatbelt then their
damages can be decreased by a minimum of 20%.
+ The Law Reform (Contributory Negligence) Act: any damages awarded to a
claimant can be decreased according to how much they contributed to their own
loss.
- Consent:
+ Full defence.
+ The claimant accepts a voluntary assumption of the risk of harm, therefore no
damage is done to one who consents to the risk.
+ This cannot be used for road traffic accidents.
+ Smith v Baker: the defendant must prove the following criteria:
→ the claimant had precise knowledge of the risk of harm involved.
→ there was an exercise of free choice on behalf of the claimant.
→ the claimant showed a voluntary acceptance of the risk of harm.
- Warning notices:
+ Full defence.
+ Cannot be used for serious injury or death.
+ Staples: warning can be oral or written.
- Exclusion clauses:
+ Occupier has the right to exclude, modify or restrict his duty by agreement.
+ Exceptions include:
→ Unfair Contract Terms Act: their duty cannot be limited from personal
injury or death which results from the defendant’s negligence.
DAMAGES:
- Special damages (pecuniary loss): monetary loss, calculated before and up to the trial.
- General damages (non-pecuniary loss): non-monetary, calculated after the trial onwards,
can be speculative, applies to a loss of amenity, pain and suffering.
- Lump sums: a one-time award of damages.
- Structured settlements: periodic fixed payments.
+ Damages Act 1996: parties can agree that the claimant receives the damages in
periodic payments.
- Mitigation of loss: the claimant is under the duty to keep their loss at a reasonable level.
CHECKLIST:
1. Duty of care.
2. Breach of duty.
3. Damage.
4. Defences.
5. Damages/remedies.
DUTY OF CARE:
- Establish duty of care using the Caparo test (Caparo v Dickman).
- Caparo test:
+ Was the harm reasonably foreseeable? (Kent v Griffiths).
+ Was there proximity? (Bourhill v Young).
+ Is it fair, just and reasonable to impose a duty of care on the defendant? (Hill).
- Where a duty of care has already been established in a similar situation (due to judicial
precedent), the Caparo test does not need to be applied. Instead, you can simply cite
Robinson v Chief Constable of West Yorkshire.
+ Also states that the police are not exempt from claims in negligence.
BREACH OF DUTY:
- A relevant case is the Alton Towers ‘Smiler’ case.
- Breach of duty is established using the Bolam test (for medical professionals) or the
standard of care test of a reasonable person, and assessing risk factors.
- Bolam test: Montgomery v Lanarkshire: a doctor is under the duty to inform their
patients of all associated risks.
- Standard of care for professionals: a professional is held at the standard of care of the
profession as a whole.
- Standard of care for learners: Nettleship v Weston: their status as a learner is irrelevant
and they are held at the same standard of care as a professional.
- Standard of care for young people:Mullin v Richards: held at the same standard of a
reasonable person of the same age as the individual at the time of the incident.
- Risk factors:
+ Special conditions (Paris v Stepney Council).
+ Size of the risk (Bolton v Stone).
+ Appropriate precautions (Latimer).
+ Unknown risks (Roe v Minister of Heath).
+ Public benefit (Day v High Performance Sports).
DAMAGE:
- Damage is proven through causation and remoteness of damage. Any pre-existing
conditions must also be taken into account.
- Causation: Barnett: did the defendant directly cause the claimant’s loss? If the claimant
would have suffered the loss anyway, then the defendant cannot be liable.
, - Remoteness of damage: the claimant cannot claim for damage that is too remote. The
type of injury must be reasonably foreseeable (Bradford v Robinson Rentals). If it is
not (Doughty v Turner Asbestos), the claimant cannot claim for it.
- Pre-existing condition:
+ Applying the ‘thin skull’ rule (defendant must take the claimant as they find them.
+ Bhamra v Dubb: therefore, if the claimant has a condition that makes them more
susceptible to harm than a reasonable person, the defendant will be held liable.
DEFENCES:
- Includes the following; contributory negligence, consent, warning signs and exclusion
clauses.
- Contributory negligence:
+ Partial defence.
+ For road traffic accidents, if the claimant does not wear a seatbelt then their
damages can be decreased by a minimum of 20%.
+ The Law Reform (Contributory Negligence) Act: any damages awarded to a
claimant can be decreased according to how much they contributed to their own
loss.
- Consent:
+ Full defence.
+ The claimant accepts a voluntary assumption of the risk of harm, therefore no
damage is done to one who consents to the risk.
+ This cannot be used for road traffic accidents.
+ Smith v Baker: the defendant must prove the following criteria:
→ the claimant had precise knowledge of the risk of harm involved.
→ there was an exercise of free choice on behalf of the claimant.
→ the claimant showed a voluntary acceptance of the risk of harm.
- Warning notices:
+ Full defence.
+ Cannot be used for serious injury or death.
+ Staples: warning can be oral or written.
- Exclusion clauses:
+ Occupier has the right to exclude, modify or restrict his duty by agreement.
+ Exceptions include:
→ Unfair Contract Terms Act: their duty cannot be limited from personal
injury or death which results from the defendant’s negligence.
DAMAGES:
- Special damages (pecuniary loss): monetary loss, calculated before and up to the trial.
- General damages (non-pecuniary loss): non-monetary, calculated after the trial onwards,
can be speculative, applies to a loss of amenity, pain and suffering.
- Lump sums: a one-time award of damages.
- Structured settlements: periodic fixed payments.
+ Damages Act 1996: parties can agree that the claimant receives the damages in
periodic payments.
- Mitigation of loss: the claimant is under the duty to keep their loss at a reasonable level.
