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Negligence (Duty of Care (Foreseeable ("was it reasonably foreseeable…
Negligence
Duty of Care
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Foreseeable
"was it reasonably foreseeable that someone in the claimants position would be injured or suffer damage"
Kent v Griffiths
it was reasonably foreseeable that an ill patient would get worse if an ambulance failed to arrive within a reasonable time.
Bourhill v Young
it was not reasonably foreseeable that a pregnant woman who saw the aftermath of an accident would go into shock ad lose her baby.
Reasonable
in mos cases it would be fair, just and reasonable to impose a duty of care, however the emergency services are exempt from this, this is due to the belief that by allowing them to be brought forth on charges of negligence would "open the floodgates" and divert valuable resources into fighting these claims.
However when the emergency services create a new danger or make an existing one worse, then they can be brought forth to court.
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Proximate
Proximity means closeness, there can be a proximity between two people based on space, time and relationship. "space and time" means a closeness to someone in terms of distance at the time of the neglectful act. A "relationship" is a preexisting relationship such as doctor/patient.
Osman v Ferguson
the claimant told the police he was being stalked and was able to name and identify his stalker, the police failed to act and he was later injured and his father murdered in an attack by the stalker. relationship is that of police/victim.
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Breach of Duty
Once the claimant has established a duty of care was owed to them, they must then establish the duty of care which has been breached.
Standard of Care
A learner
Compared to a "competent person", someone who has passed their tests, and not to other learners.
Nettleship V weston
Learner driver crashed car into a lamppost injuring her passenger. Court of appeal stated that learner drivers were to be judged against a the standard of a reasonably competent driver and that she had failed to reach that standard.
An expert
Standard of care is that normally expected of a similarly qualified expert. they will be judged against normal standards for that particular profession.
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A reasonable person
compared to an ordinary person, If D falls below the standard of care a reasonable person would take when carrying out a task, then there is a breach of duty.
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A child
Compared to a reasonable person of that age, rather than an adult.
Mullin v Richards
Two 15 year old girls were having a play fight using rulers as swords. one of the rulers snapped and a piece of plastic went into one girls eye causing her to lose her sight. COA held that D must meet the standard of a reasonable 15 year old and that as she had met this she was not liable.
Risk Factors
Social value of conduct
If D is doing something " socially valuable" that will benefit the public, then this may justify taking extra risks.
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Risks known at time
Means that if the risks were not known at the time of an accident then D is not liable. However, if the risks were known then D is more liable.
Roe v Minister of Health
Anaesthetic was kept in glass tubes which were cleaned in a special solution after each use. it was not known that tiny invisible cracks could occur in the glass and that this could cause the anaesthetic to become contaminated by the residual solution. the claimant became paralysed due to a bad reaction caused by the contaminated anaesthetic. as the risk off contamination was not know, the court decided to refuse the claim.
Size of the risk
D should take more precautions if the risk is high, but does not need to take precaution against low risk or highly unlikely events.
Bolton v Stone
A cricket ball hit someone walking past the ground. there was a 5 metre high fence and balls had been hit outside the ground only 6 times in 30 years, the risk of damage was very low and thus no breach of duty.
Damage
Once the claimant has established a duty of care and breach, they must prove that they suffered damage as a result.
Factual causation
Proving the "but for" test; "but for" D's conduct the outcome would no have occured in the manner it did or at the time it did
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