Physical injury/Property Damage
, PHYSICAL INJURY/ PROPERTY DAMAGE
1. DUTY OF CARE
➔ A duty of care is a legal obligation requiring D to take reasonable care to avoid
causing foreseeable harm to others
Donoghue v Stevenson: You must take reasonable care to avoid acts or omissions which
can reasonably injure your neighbour (reflects the neighbour principle). A neighbour is
someone who is closely and directly affected by D's actions and whom D ought
reasonably to have in contemplation
➔ To establish a duty of care, the courts apply the Three-Part Caparo Test)
(Three-Part Caparo Test) :
1. Foreseeability
➔ The damage suffered by C must be reasonably foreseeable
➔ The courts ask whether a reasonable person would have foreseen that their
actions might cause injury or damage to someone in C’s position
Kent v Griffiths: It is reasonably foreseeable that delay would cause harm
2. Proximity
➔ There must be sufficient proximity between D and C
➔ Proximity refers to the closeness of the relationship between the parties and may
arise through: physical closeness, closeness in time, or the relationship between
parties
Bourhill v Young: No duty of care where the relationship between D and C is too remote
and there is insufficient proximity
, 3. Fair, Just and Reasonable
➔ The court must decide whether imposing a duty would be fair, just and reasonable
in the circumstances.
➔ The courts consider wider public policy issues, including whether recognising a
duty could lead to excessive claims or create undesirable consequences
(‘floodgates’)
Hill v Chief Constable of West Yorkshire: A duty may be denied where imposing liability
would be contrary to the public interest
2. BREACH
➔ A breach of duty occurs where D falls below the standard of care expected of a
reasonable person (objective)
➔ The court does not consider how careful D personally is. Instead, D is compared
with the standard expected of a reasonable person in the same circumstances
➔ Professionals are judged against the standard expected of a reasonably
competent professional carrying out that role
Montgomery v Lanarkshire: Medical professionals must meet the standards expected of
a competent professional and inform patients of material risks involved in treatment
Nettleship v Weston: Inexperience is not a defence -Learner drivers are judged
according to the standard expected of a competent qualified driver
Mullin v Richards: The standard of care for children is adjusted to reflect their age and
maturity
RISK FACTORS…
➔ The courts may raise or lower the standard of care depending on the
circumstances
1. Special Characteristics: Greater precautions may be required where C is
particularly vulnerable
Paris v Stepney Council: D must take greater care where they know C has a particular
vulnerability which increases the risk of harm
2. Size of Risk: The greater the likelihood of harm occurring, the greater the
precautions expected
Bolton v Stone: There may be no breach where the risk of harm is extremely small or
unlikely
3. Appropriate Precautions: The court considers whether D took reasonable steps
to reduce the risk
Latimer v AEC Ltd: There may be no breach where D has taken all reasonable precautions
even though some risk remains
, 4. Unknown Risks: D cannot normally be expected to guard against risks that were
not known at the time
Roe v Minister of Health: There is no breach where the risk could not reasonably have
been known using the knowledge available at the time
5. Public Benefit: The courts may lower the standard of care where D's actions
provide a social benefit
Day v High-Performance Sports: Activities which provide a benefit to society may justify
taking certain risks.
3. DAMAGE
➔ C must prove that D’s breach caused damage
The claimant must establish:
➔ Factual Causation
➔ Remoteness of Damage
1. Factual Causation
➔ The court applied the ‘But For’ Test
➔ The question is: Would the damage have occurred but for D’s breach?
Barnett v Chelsea and Kensington Hospital: ‘But for’ Test - but for D’s acts or
omissions, would C have suffered the loss or harm
➔ YES; not liable.
➔ NO; factual causation is satisfied, and D is liable
2. Remoteness of Damage
➔ The damage suffered must not be too remote
➔ D is only liable for damage that was reasonably foreseeable at the time of the
breach
➔ If damage is too remote then it is not an actionable loss in negligence
The Wagon Mound:D is only liable for reasonably foreseeable types of damage
Thin Skull Rule : D must take C as they find them
➔ If C suffers unusually severe harm because of a pre-existing vulnerability, D
remains fully liable
Bhamra v Dubb: An unusual vulnerability of C will not reduce D's liability
4. DEFENCES
1. Contributory Negligence
The Law Reform (Contributory Negligence) Act 1945
➔ Occurs when the C partly contributed to their own harm
, PHYSICAL INJURY/ PROPERTY DAMAGE
1. DUTY OF CARE
➔ A duty of care is a legal obligation requiring D to take reasonable care to avoid
causing foreseeable harm to others
Donoghue v Stevenson: You must take reasonable care to avoid acts or omissions which
can reasonably injure your neighbour (reflects the neighbour principle). A neighbour is
someone who is closely and directly affected by D's actions and whom D ought
reasonably to have in contemplation
➔ To establish a duty of care, the courts apply the Three-Part Caparo Test)
(Three-Part Caparo Test) :
1. Foreseeability
➔ The damage suffered by C must be reasonably foreseeable
➔ The courts ask whether a reasonable person would have foreseen that their
actions might cause injury or damage to someone in C’s position
Kent v Griffiths: It is reasonably foreseeable that delay would cause harm
2. Proximity
➔ There must be sufficient proximity between D and C
➔ Proximity refers to the closeness of the relationship between the parties and may
arise through: physical closeness, closeness in time, or the relationship between
parties
Bourhill v Young: No duty of care where the relationship between D and C is too remote
and there is insufficient proximity
, 3. Fair, Just and Reasonable
➔ The court must decide whether imposing a duty would be fair, just and reasonable
in the circumstances.
➔ The courts consider wider public policy issues, including whether recognising a
duty could lead to excessive claims or create undesirable consequences
(‘floodgates’)
Hill v Chief Constable of West Yorkshire: A duty may be denied where imposing liability
would be contrary to the public interest
2. BREACH
➔ A breach of duty occurs where D falls below the standard of care expected of a
reasonable person (objective)
➔ The court does not consider how careful D personally is. Instead, D is compared
with the standard expected of a reasonable person in the same circumstances
➔ Professionals are judged against the standard expected of a reasonably
competent professional carrying out that role
Montgomery v Lanarkshire: Medical professionals must meet the standards expected of
a competent professional and inform patients of material risks involved in treatment
Nettleship v Weston: Inexperience is not a defence -Learner drivers are judged
according to the standard expected of a competent qualified driver
Mullin v Richards: The standard of care for children is adjusted to reflect their age and
maturity
RISK FACTORS…
➔ The courts may raise or lower the standard of care depending on the
circumstances
1. Special Characteristics: Greater precautions may be required where C is
particularly vulnerable
Paris v Stepney Council: D must take greater care where they know C has a particular
vulnerability which increases the risk of harm
2. Size of Risk: The greater the likelihood of harm occurring, the greater the
precautions expected
Bolton v Stone: There may be no breach where the risk of harm is extremely small or
unlikely
3. Appropriate Precautions: The court considers whether D took reasonable steps
to reduce the risk
Latimer v AEC Ltd: There may be no breach where D has taken all reasonable precautions
even though some risk remains
, 4. Unknown Risks: D cannot normally be expected to guard against risks that were
not known at the time
Roe v Minister of Health: There is no breach where the risk could not reasonably have
been known using the knowledge available at the time
5. Public Benefit: The courts may lower the standard of care where D's actions
provide a social benefit
Day v High-Performance Sports: Activities which provide a benefit to society may justify
taking certain risks.
3. DAMAGE
➔ C must prove that D’s breach caused damage
The claimant must establish:
➔ Factual Causation
➔ Remoteness of Damage
1. Factual Causation
➔ The court applied the ‘But For’ Test
➔ The question is: Would the damage have occurred but for D’s breach?
Barnett v Chelsea and Kensington Hospital: ‘But for’ Test - but for D’s acts or
omissions, would C have suffered the loss or harm
➔ YES; not liable.
➔ NO; factual causation is satisfied, and D is liable
2. Remoteness of Damage
➔ The damage suffered must not be too remote
➔ D is only liable for damage that was reasonably foreseeable at the time of the
breach
➔ If damage is too remote then it is not an actionable loss in negligence
The Wagon Mound:D is only liable for reasonably foreseeable types of damage
Thin Skull Rule : D must take C as they find them
➔ If C suffers unusually severe harm because of a pre-existing vulnerability, D
remains fully liable
Bhamra v Dubb: An unusual vulnerability of C will not reduce D's liability
4. DEFENCES
1. Contributory Negligence
The Law Reform (Contributory Negligence) Act 1945
➔ Occurs when the C partly contributed to their own harm
