NEGLIGENCE CHECKLIST

NEGLIGENCE DEFINITION: Breach of a legal duty to take care, owed by the D to the C, which results in damage, undesired by the D to the C.

DUTY OF CARE
Established Duty One road user to another Doctor to patient Employer to employee Manufacturer to consumer Tutor to tutee, or teacher to pupil Novel Duty: A new situation that creates a new duty of care that has not previously been established Donoghue v Stevenson 1932 sets out the neighbour principle: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Caparo Industries plc v Dickman [1990]re-defines the neighbour principle making it easier to apply, Test for duty in a novel situation:

1. Reasonable foresight of harm to the claimant 2. Sufficient proximity of relationship between the claimant and defendant 3. That it is fair, just and reasonable to impose a duty. Application of the Caparo Test Hill v Chief Constable of West Yorkshire 1989; Kirkham v Chief Constable of Greater Manchester Police 1990. In Hill the police were exonerated from liability on the basis that they did not owe a duty of care to individuals, their duty of care is to the public at large. In Kirkham the police had assumed a responsibility towards the prisoner. There was far greater proximity between the police and the prisoner, than the police and the claimants in Hill. General rule no liability for omissions, Stovin v Wise 1996. Except occasions where there is a duty to act positively: There is a duty to act positively in tort if a person has some sort power or control over the other person. E.g. employer to employee, schools and children, parents and children. Where one person has a relationship of control over another, he may have a duty to take positive action to prevent harm being caused to third parties. E.g. duty of a driving instructor to make sure that the learner does not cause an accident.

BREACH OF DUTY
1

Whether a D has breached duty of care is a question of fact for the judge to decide. Involves the application of 2 stage test for breach of duty= 1. Court first assesses how the defendant in the circumstances ought to have behaved 2. Court then decides whether the defendants conduct fell below the required standard Blyth v Birmingham Waterworks (1856) - D must meet the standard of the reasonable person Bolam v Friern Hospital Management Committee 1957 a skilled D will be judged according to the degree of skill or competence to be expected from a person with that skill. Nettleship v Weston 1971 - A learner driver must reach the standard of the reasonably competent driver even on his first drive. Wilsher v Essex Area Health Authority 1987 - No allowance will be made for the inexperience of a junior doctor. A junior doctor can discharge their duty of care by passing it on to someone more experienced. Mullin v Richards 1998 a child defendant will be expected to show as much care as can reasonably be expected of an ordinary child of the same age. A child under 18 cannot be sued (or sue) unless he has an adult to represent him, a litigation friend. In assessing whether or not a defendant has fallen below a reasonable standard of care, the courts needs to weigh up: The risk carried out by the defendants activities; How likely was it that the defendants actions could cause an injury? The decision in Bolton v Stone recognised that it is justifiable not to take steps to eliminate a real risk if the risk of injury is small and if the circumstances are such that a reasonable person would think it right to neglect it. If an injury was caused, how serious was it likely to be? Risk of Greater Injury: Paris v Stepney Borough Council 1951 The precautions which the defendant ought to reasonably have taken in response to that risk. If the risk of injury could have been substantially reduced at a low cost to the defendant, the defendant will have acted unreasonably if he fails to take the necessary precautions. General rule, if a defendants failure to exercise reasonable care is attributable to his lack of resources, the courts will not allow the defendant to use this as an excuse. Lack of money is not a defence.

PROVING BREACH OF DUTY

Burden of proof is on the C on the balance of probabilities. The C must establish that it was more likely than not that the D was in breach of the duty of care. 2

When there is no witness to the Ds alleged breach, Res Ipsa Loquitur the thing speaks for itself will help the claimant. Scott v London and St Katherine Docks 1865 sets out 3 conditions for the application of Res Ipsa Loquitur: The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible. The accident must be such as would not normally happen without negligence The cause of the accident is unknown to the claimant so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care.

The defendant then has to provide a reasonable explanation to rebut the inference of negligence; needs to explain how the accident could have occurred without negligence. The defendant can do this in either 2 ways. He needs to provide evidence to show: a) How the accident actually happened and that it was not due to negligence on his part; or b) If he cannot show how the accident actually happened, that he had at all times used all reasonable care.

CAUSATION OF DAMAGE
Causation in fact Basic But For Test = But for the defendants breach of duty, would the harm to the claimant have occurred? If yes the harm would still have occurred in any event then the claimant has failed to establish causation and his claim against the defendant must fail. If no the harm would not have occurred but for the defendants negligence - then causation is satisfied and the claimant is able to proceed with his claim. Modified Test= Bonnnington Castings Ltd v Wardlow C has to show that Ds actions materially contributed to the damage. McGhee v National Coal Board - A claimant will be able to establish causation if he can show that the defendants negligence has either: a) Materially contributed to the claimants harm; or b) Materially contributed to the risk of harm to the claimants. (Only use the modified test if but for test cannot be satisfied) New intervening Act Act of third party test = an act of a third party may not break the chain of causation if D ought to have foreseen it (Rouse v Squires). As a broad rule we can say that the chain of causation is unlikely to be broken by an action which the defendant ought to have foreseen as a likely consequence of his negligence. 3

Act of claimant test = to be a new intervening act the Cs act has to be entirely unreasonable in all the circumstances, otherwise the act will simply be a natural event and will not break the chain of causation.

Remoteness of Damage When a court decides that damage is too far removed, so that a defendant should not be responsible for it, damage is said to be too remote. Basic Test = The Wagon Mound (no 1) If a reasonable person would not have foreseen the damage then the claimant cannot recover that damage from the defendant. Proviso 1: the similar in type rule Test = Hughes v Lord Advocate: provided the type of injury is reasonably foreseeable, it is not necessary to foresee the exact way in which the injury is caused. Proviso 2: the egg shell skull rule Test = Robinson v Post Office: You take the victim as you find him. Provided the type of harm was reasonably foreseeable, D is liable for the full extent of harm, even if the precise extent of the damage was not foreseeable.

DEFENCES
Voluntary assumption of risk: operates as a complete defence for the defendant For this defence to succeed, D must prove: a) That C had full knowledge of the nature and extent of the risk which C is alleged to have assumed. It is not sufficient for C simply to know that the risk exists; and b) That C willingly consented to accept the risk of being injured due to Ds negligence. Judges have frequently pointed out that knowledge is not consent! Dann v Hamilton- it could not be said that knowledge of the risk was sufficient enough to imply consent to that risk. Morris v Murray, the drunkenness of the pilot was so extreme and obvious that C could be said to have accepted the risk of his negligence.

Illegality The fact that C was involved in an illegal enterprise at the time he was injured may sometimes provide the D with a defence. No action arises from disgraceful cause - Pitts v Hunt Contributory Negligence most likely defence; S 1(1) Law Reform (Contributory Negligence) Act 1945 Two elements:

Carelessness on the claimants part to take reasonable care of your own safety; and That carelessness has contributed to the claimants damage.

Examples of contributory negligence: Seatbelts - Froom V Butcher The defendant must establish a causal link between Cs failure to wear a seatbelt and the loss that C has suffered. Crash helmets - Motor cyclists who suffer head injuries due to a failure to wear a crash helmet will have their damages reduced for contributory negligence (Capps v Miller). Passengers who accept lifts from a driver who, they know to be drunk, can expect to have their damages reduced if they are injured in an accident caused by the drivers intoxicated state.

JOINT & SEVERAL LIABILITY

Where two or more people are responsible for the same damage, the Civil Liberty (Contribution) Act 1978 gives the court power to apportion the damage between them. Damages are apportioned according to each persons share of responsibility for the damage. If injury is indivisible (you cannot see who is responsible for what injury), the C needs to sue only one D. D can seek contribution to help pay the damages from the other party liable. The benefits for C are that it is easier to sue one D rather than to chase several.

If the injury is divisible, the C has to sue all the Ds and if you cannot trace them all then you cannot get all the compensation.