Negligence AO1
Definition
Negligence requires proof of fault. In order to establish whether the defendant has
been negligent, it needs to be proven that there was a duty of care, the duty of
care was breached and it caused foreseeable damage.
Duty of care – The current position
Robinson v Chief Constable of West Yorkshire:
There isn't a single, absolute method to determine if a duty of care exists in a
legal case.
Start with precedents: The initial step is to see if previous legal decisions
(precedents) can be applied directly to the case. (Refer to cases of similar
nature here for problem-solving)
Build on existing laws: If no direct precedent fits, the next step is to gradually
develop the law, drawing analogies from similar previous cases to extend or
adapt the principles to the new situation.
Using the Caparo test:
This test is used specifically when the case is unusual (novel) or when there's a
suggestion to move away from established law. The Caparo test checks three
things:
Foresight: Could the harm have been foreseen? (Example from Kent v
Griffiths)
Proximity: Was there a close relationship or connection that justifies
imposing a duty? (Example from Bourhill v Young)
Fairness: Is it fair, just, and reasonable to impose a duty? (Example from
Mitchell v Glasgow CC)
Breach of Duty
In order to establish there has been a breach of duty, the defendant is judged
objectively – their behaviour must be that of a reasonable person who is performing
that task competently (Vaughan v Menlove).
, Variations of the reasonable person
If the defendant falls under one of the three categories, they will be compared to
the reasonable person in that category.
Reasonable learner: learners are judged against a competent and more
experienced person (Nettleship v Weston)
Reasonable child: children are judged against a child of their age at the
time of the negligence (Mullins v Richards)
Reasonable professional: a reasonable profession is compared to an
ordinary, competent member of that profession. To understand if an ordinary,
competent member of that profession would have acted in the same way, the
Bolam principle needs to be applied:
1. Does the defendant’s behaviour fall below the standard of am ordinary,
competent member of that profession? No: move onto next question
2. Does a body of opinion of that profession exist which may support the
action taken by defendant? Yes: There is no breach of duty
Risk Factors
The following will help the courts in deciding if the standard of care should be
higher or lower based on whether the a reasonable person would have done the
same if faced with the same risk factors
Special characteristics of the claimant: if the defendant knows of the
consequences would have been worse due to the claimant’s vulnerability,
they should take more care (Paris v Stepney Borough Council)
Size of risk: If the size of the risk is high, the more care should be taken and
if the size of risk is low, no extra care needs to be taken (Bolton v Stone)
Cost and practicality: the defendant will not breach their duty if the cost of
preventing the risk is too high in comparison to the risk posed, nor will they
need to take any extra precautions if it is too impractical to prevent the risk
(Latimer v AEC)
Known risks: The defendant cannot breach their duty for risks that are not
known (Roe v Minister of Health)
Benefit to society: If a risk benefits the public, then there is no breach of
duty. This is usually only available to emergency situations whereby a
reduced level of care may be accepted (Watt v Hertfordshire County
Council)
Damage
Factual causation
But for the defendant’s act or failure to act, the injury or loss would not have
occurred (Barnett v Chelsea and Kensington Hospital)
Legal causation
Intervening acts
Intervening acts may break the chain of causation even if the ‘but for’ test is
satisfied. The following break the chain of causation:
Claimant’s own acts – McKew v Holland
Act of nature – Carslogie Steamship Co
Act of a third party – Knightly v Johns
If the intervening act is reasonably foreseeable then it does not break the chain of
causation nor does it break the chain of causation if it is the defendant’s duty to
prevent the intervening act.
, Remoteness of damage
The damage must be reasonably foreseeable. The defendant needs to have
foresight of the harm to satisfy this test – Wagon Mound
If the type of damage is foreseeable but it happens in an unforeseeable way, the
defendant is still liable for the damage – Hughes v Lord Advocate
Egg-shell skull rule
The defendant must take their victim as they find them. This means that if the
damage is foreseeable but makes the outcome more serious due to the claimant’s
pre-existing condition, then the defendant is liable for the outcome – Smith v
Leech Brain
Defences
Contributory negligence
Partial defence.
Judge will reduce compensation based on C’s contribution. Did the C’s actions or
omissions help cause the injuries? Sayers v Harlow – compensation reduced by
25%
Volenti non fit inuria (consent)
Full defence.
The defendant must show that the C:
1. Knew of the precise risk involved
2. Exercised free choice
3. Voluntarily accepted the risk
Haynes v Harwood – defence failed as the C was not acting voluntarily
Remedies
Compensation
Pecuniary – easily calculated such as the cost of hiring a car while C’s car is being
replaced, or damaged clothing, fairs spent on visits to hospital
Non-pecuniary – pain and suffering, loss of amenity
Special damages – calculated losses up until the date of trial for financial losses
such as vehicle repairs, hiring, replacing damaged items, loss of earnings,
necessary medical treatment
General damages – non pecuniary losses from date of trial – pain and suffering, loss
of amenity, future loss of earnings, future medical expenses
Methods of payment
Lump sum
Structured settlements
Mitigation of loss
Damages claimed must be reasonable. Unreasonable claims cannot be sought.
Claimant is expected to mitigate the loss
Definition
Negligence requires proof of fault. In order to establish whether the defendant has
been negligent, it needs to be proven that there was a duty of care, the duty of
care was breached and it caused foreseeable damage.
Duty of care – The current position
Robinson v Chief Constable of West Yorkshire:
There isn't a single, absolute method to determine if a duty of care exists in a
legal case.
Start with precedents: The initial step is to see if previous legal decisions
(precedents) can be applied directly to the case. (Refer to cases of similar
nature here for problem-solving)
Build on existing laws: If no direct precedent fits, the next step is to gradually
develop the law, drawing analogies from similar previous cases to extend or
adapt the principles to the new situation.
Using the Caparo test:
This test is used specifically when the case is unusual (novel) or when there's a
suggestion to move away from established law. The Caparo test checks three
things:
Foresight: Could the harm have been foreseen? (Example from Kent v
Griffiths)
Proximity: Was there a close relationship or connection that justifies
imposing a duty? (Example from Bourhill v Young)
Fairness: Is it fair, just, and reasonable to impose a duty? (Example from
Mitchell v Glasgow CC)
Breach of Duty
In order to establish there has been a breach of duty, the defendant is judged
objectively – their behaviour must be that of a reasonable person who is performing
that task competently (Vaughan v Menlove).
, Variations of the reasonable person
If the defendant falls under one of the three categories, they will be compared to
the reasonable person in that category.
Reasonable learner: learners are judged against a competent and more
experienced person (Nettleship v Weston)
Reasonable child: children are judged against a child of their age at the
time of the negligence (Mullins v Richards)
Reasonable professional: a reasonable profession is compared to an
ordinary, competent member of that profession. To understand if an ordinary,
competent member of that profession would have acted in the same way, the
Bolam principle needs to be applied:
1. Does the defendant’s behaviour fall below the standard of am ordinary,
competent member of that profession? No: move onto next question
2. Does a body of opinion of that profession exist which may support the
action taken by defendant? Yes: There is no breach of duty
Risk Factors
The following will help the courts in deciding if the standard of care should be
higher or lower based on whether the a reasonable person would have done the
same if faced with the same risk factors
Special characteristics of the claimant: if the defendant knows of the
consequences would have been worse due to the claimant’s vulnerability,
they should take more care (Paris v Stepney Borough Council)
Size of risk: If the size of the risk is high, the more care should be taken and
if the size of risk is low, no extra care needs to be taken (Bolton v Stone)
Cost and practicality: the defendant will not breach their duty if the cost of
preventing the risk is too high in comparison to the risk posed, nor will they
need to take any extra precautions if it is too impractical to prevent the risk
(Latimer v AEC)
Known risks: The defendant cannot breach their duty for risks that are not
known (Roe v Minister of Health)
Benefit to society: If a risk benefits the public, then there is no breach of
duty. This is usually only available to emergency situations whereby a
reduced level of care may be accepted (Watt v Hertfordshire County
Council)
Damage
Factual causation
But for the defendant’s act or failure to act, the injury or loss would not have
occurred (Barnett v Chelsea and Kensington Hospital)
Legal causation
Intervening acts
Intervening acts may break the chain of causation even if the ‘but for’ test is
satisfied. The following break the chain of causation:
Claimant’s own acts – McKew v Holland
Act of nature – Carslogie Steamship Co
Act of a third party – Knightly v Johns
If the intervening act is reasonably foreseeable then it does not break the chain of
causation nor does it break the chain of causation if it is the defendant’s duty to
prevent the intervening act.
, Remoteness of damage
The damage must be reasonably foreseeable. The defendant needs to have
foresight of the harm to satisfy this test – Wagon Mound
If the type of damage is foreseeable but it happens in an unforeseeable way, the
defendant is still liable for the damage – Hughes v Lord Advocate
Egg-shell skull rule
The defendant must take their victim as they find them. This means that if the
damage is foreseeable but makes the outcome more serious due to the claimant’s
pre-existing condition, then the defendant is liable for the outcome – Smith v
Leech Brain
Defences
Contributory negligence
Partial defence.
Judge will reduce compensation based on C’s contribution. Did the C’s actions or
omissions help cause the injuries? Sayers v Harlow – compensation reduced by
25%
Volenti non fit inuria (consent)
Full defence.
The defendant must show that the C:
1. Knew of the precise risk involved
2. Exercised free choice
3. Voluntarily accepted the risk
Haynes v Harwood – defence failed as the C was not acting voluntarily
Remedies
Compensation
Pecuniary – easily calculated such as the cost of hiring a car while C’s car is being
replaced, or damaged clothing, fairs spent on visits to hospital
Non-pecuniary – pain and suffering, loss of amenity
Special damages – calculated losses up until the date of trial for financial losses
such as vehicle repairs, hiring, replacing damaged items, loss of earnings,
necessary medical treatment
General damages – non pecuniary losses from date of trial – pain and suffering, loss
of amenity, future loss of earnings, future medical expenses
Methods of payment
Lump sum
Structured settlements
Mitigation of loss
Damages claimed must be reasonable. Unreasonable claims cannot be sought.
Claimant is expected to mitigate the loss
