Negligence
Duty of Care
Donoghue v Stevenson 1932 established the neighbour principle rule which states you need to have reasonable care to your neighbour. Those who could be reasonably foreseen to suffer harm can sue you in negligence.
This test was taken further and made clear in the case of Caparo v Dickman plc (1990). It established a three-part test to determining whether there was a duty of care.
Three part test
If these three things can be proven, then there will be a duty of care. Often, it is clear that there is a duty of care, such as a patient and doctor relationship.
Donoghue v Stevenson 1932 established the neighbour principle rule which states you need to have reasonable care to your neighbour. Those who could be reasonably foreseen to suffer harm can sue you in negligence.
This test was taken further and made clear in the case of Caparo v Dickman plc (1990). It established a three-part test to determining whether there was a duty of care.
Three part test
- Is it reasonably foreseeable that there is a duty? This is established from Kent v Griffiths (2000) where a delay in the ambulance arriving was a reasonably foreseeable reason for more harm to be suffered by the claimant.
- Is there sufficient proximity between the claimant and the defendant? In Bourhill v Young (1961), the pregnant fishwife tried to sue the negligent driver who crashed but the courts said that she was too far away from the accident and that there was no proximity between the claimant and the defendant.
- Is it fair, just and reasonable to impose a duty? In Hill v Chief Constable of West Yorkshire (1988), the courts decided it was simply not fair, just and reasonable to impose a duty to police officers to catch criminals. There was a general duty established to the public but not one to individuals to ensure they reach their aims.
If these three things can be proven, then there will be a duty of care. Often, it is clear that there is a duty of care, such as a patient and doctor relationship.
Breach of Duty
If there is a duty, did the actions of the claimant breach that duty and did this breach cause the damage to the claimant?
Reasonable standard - Blyth is the case we use for establishing what the standard of care is. It sets an objective standard which we have to meet to ensure we do not breach our duty. This standard can be decreased or increased depending on certain elements or risk factors.
Has the Defendant fallen below the standard of care? If they have, then there will be a breach of duty. In different situations, there will be varying levels of a standard of care. In Nettleship v Weston, it was determined that learner drivers are held to the same standard as experienced drivers.
Bolam test - held to the reasonable standard of a professional.
Risk factors
There are some risk factors involved that will either increase or decrease the standard of care involved in cases. We will look at three and learn these with a case for each one.
If there is a duty, did the actions of the claimant breach that duty and did this breach cause the damage to the claimant?
Reasonable standard - Blyth is the case we use for establishing what the standard of care is. It sets an objective standard which we have to meet to ensure we do not breach our duty. This standard can be decreased or increased depending on certain elements or risk factors.
Has the Defendant fallen below the standard of care? If they have, then there will be a breach of duty. In different situations, there will be varying levels of a standard of care. In Nettleship v Weston, it was determined that learner drivers are held to the same standard as experienced drivers.
Bolam test - held to the reasonable standard of a professional.
Risk factors
There are some risk factors involved that will either increase or decrease the standard of care involved in cases. We will look at three and learn these with a case for each one.
- Vulnerability of the claimant - if the claimant is particular vulnerable or has characteristics that make the claimant more susceptible to harm, then the standard of care is higher. In Paris v Stepney Borough Council (1951), the claimant was owed a higher standard of care when they failed to provide goggles as he only had one eye.
- Probability of harm - if the probability of harm to the claimant is really low then the standard will be lower. This was seen in Bolton v Stone (1951), where a cricket ball hit a passer-by in the street. The evidence was that there was a 17-foot high fence around the ground and the wicket was a long way from this fence. Balls had only been hit out of the ground six times in the last 30 years. Because of the low risk involved there was no breach of duty because they had carried out reasonable steps.
- Justified risk taking - if there is a risk that can be justified then the standard of care will be reached, or a lack of reaching that standard will be justified. In Watt v Hertfordshire County Council (1954), the fireman was injured by a falling instrument in the back of a fire truck, but the risk was justified because of a necessity to get out quickly and save those trapped in an accident.
Damage
Damage can be physical, psychiatric or even purely economical. The important part is that we show that the damage suffered by the claimant was caused by the defendant's actions. We need to prove that the damage was caused by the breach of duty this is done in causation.
Was there physical or financial loss suffered to the claimant? In Unit 4 we will be looking at psychiatric harm as well as pure economic loss. These are different types of damage that claimants can suffer.
Factual Causation - the 'but for' test is used to ask but for not the defendant's negligence, would the harm have occurred anyway? If the answer is no then we say that there is no factual causation. We have to prove that the actions of the defendant was the reason for the harm suffered. This is established in the case of Barnett v Chelsea and Kensington Hospitals (1968).
Legal causation - this is established through the remoteness of harm. Is the harm being claimed for reasonably foreseeable? We use the Wagon Mound (1961) case because it shows that some harm was foreseeable but the entire burning down of a wharf when oil leaked was not reasonably foreseeable. This means that the harm was too remote.
If the damage is not reasonably foreseeable, then it is too remote. Hughes v Lord Advocate (1963) shows that it is not the method of harm that needs to be foreseeable, but that the actual harm suffered was reasonable foreseeable.
Damage can be physical, psychiatric or even purely economical. The important part is that we show that the damage suffered by the claimant was caused by the defendant's actions. We need to prove that the damage was caused by the breach of duty this is done in causation.
Was there physical or financial loss suffered to the claimant? In Unit 4 we will be looking at psychiatric harm as well as pure economic loss. These are different types of damage that claimants can suffer.
Factual Causation - the 'but for' test is used to ask but for not the defendant's negligence, would the harm have occurred anyway? If the answer is no then we say that there is no factual causation. We have to prove that the actions of the defendant was the reason for the harm suffered. This is established in the case of Barnett v Chelsea and Kensington Hospitals (1968).
Legal causation - this is established through the remoteness of harm. Is the harm being claimed for reasonably foreseeable? We use the Wagon Mound (1961) case because it shows that some harm was foreseeable but the entire burning down of a wharf when oil leaked was not reasonably foreseeable. This means that the harm was too remote.
If the damage is not reasonably foreseeable, then it is too remote. Hughes v Lord Advocate (1963) shows that it is not the method of harm that needs to be foreseeable, but that the actual harm suffered was reasonable foreseeable.
Res Ipsa Loquitur
This means 'let the facts speak for themselves'. Sometimes in Negligence, it is difficult for a claimant to prove that the defendant was in the wrong, but using this concept a claimant can show that the defendant was in the wrong.
There are three conditions/elements that the claimant must show in order for res ipsa loquitur to apply. These are;
An example case is Scott v London and St Katherine Docks (1865). The claimant was hit by bags of sugar that fell from the defendant's warehouse. They proved that the conditions were met and then the burden of proof was switched to the defendant. The defendant then has to prove that they were not in control of the action that caused damage to the claimant.
This means 'let the facts speak for themselves'. Sometimes in Negligence, it is difficult for a claimant to prove that the defendant was in the wrong, but using this concept a claimant can show that the defendant was in the wrong.
There are three conditions/elements that the claimant must show in order for res ipsa loquitur to apply. These are;
- The thing that caused the damage was wholly controlled by the Defendant.
- The incident that caused the damage would not have happened unless someone had been negligent.
- There is no other explanation for the injury / damage caused to the Claimant or their property.
An example case is Scott v London and St Katherine Docks (1865). The claimant was hit by bags of sugar that fell from the defendant's warehouse. They proved that the conditions were met and then the burden of proof was switched to the defendant. The defendant then has to prove that they were not in control of the action that caused damage to the claimant.
Medical Negligence
In a medical context, there can be negligent acts and actions taken against them. This is where someone with medical expertise has been negligent. The same rules of duty, breach and damage still apply but the duty of care is fairly easy to establish but we have to spend more time to determine whether the doctor has breached that duty.
In a medical context, there can be negligent acts and actions taken against them. This is where someone with medical expertise has been negligent. The same rules of duty, breach and damage still apply but the duty of care is fairly easy to establish but we have to spend more time to determine whether the doctor has breached that duty.
Civil Procedure
Here we look at how we would deal with making a claim against a defendent. To begin with, a claimant will fill in a claim form and hand it in to the court they wish to file the claimant with. the defendant will have 14 days to respond to their case and they can decide to settle out of court or deny liability and take the case to court. The parties will be encouraged to try ADR before going to court.
Track System
Depending on how much the court case is worth, it will be allocated to a certain track. There are three tracks:
Small claims track - normally for disputes under £10,000 but the limit for personal injury claims is £5,000. These are simple quick cases and are quite informal.
Fast track - for straightfoward disputes of up to £50,000. These are attempted to be heard in 30 weeks and aim to prevent both sides wasting money on court costs and time.
Multi track - for claims over £50,000 - these are complex cases with lots of people involved, where a Circuit Judge will 'manage' the case.
Appeals
Claimants can appeal against the decision if they lose.
Here we look at how we would deal with making a claim against a defendent. To begin with, a claimant will fill in a claim form and hand it in to the court they wish to file the claimant with. the defendant will have 14 days to respond to their case and they can decide to settle out of court or deny liability and take the case to court. The parties will be encouraged to try ADR before going to court.
Track System
Depending on how much the court case is worth, it will be allocated to a certain track. There are three tracks:
Small claims track - normally for disputes under £10,000 but the limit for personal injury claims is £5,000. These are simple quick cases and are quite informal.
Fast track - for straightfoward disputes of up to £50,000. These are attempted to be heard in 30 weeks and aim to prevent both sides wasting money on court costs and time.
Multi track - for claims over £50,000 - these are complex cases with lots of people involved, where a Circuit Judge will 'manage' the case.
Appeals
Claimants can appeal against the decision if they lose.
- If their case was heard by a District Judge in the County Court then they can appeal to a Circuit Judge in the County Court.
- If you then appeal that appeal from the Circuit Judge, it will be a second appeal in the Court of Appeal.
- If their case was heard by a Circuit Judge in the County Court then they can appeal to a High court Judge in the High Court.
- If you then appeal that appeal from the High Court Judge, it will be a second appeal in the Court of Appeal.
Pure economic loss and negligent misstatement
This is a topic that involves negligence in the standard format, but when the damage is purely economic. There is no physical or psychiatric harm but there is a breach of duty that causes the claimant to lose money only. In normal circumstances, a claimant cannot sure for economic loss. You can only successfully receive damages when there is the exception of a negligent misstatement.
Negligent misstatement means that someone has fulfilled a role and has a duty because of that and has either given bad advice or been negligent to the statements given. This statement can open a defendant up to being sued for damages lost by reliance on that statement.
There are certain criteria set out in the case of Hedley Byrne for there to be a successful case of negligent misstatement. In this case,
Negligent misstatement means that someone has fulfilled a role and has a duty because of that and has either given bad advice or been negligent to the statements given. This statement can open a defendant up to being sued for damages lost by reliance on that statement.
There are certain criteria set out in the case of Hedley Byrne for there to be a successful case of negligent misstatement. In this case,