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Negligence - Coggle Diagram
Negligence
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Caparo Test: proximity, harm reasonably foreseeable?, is it fair just and reasonable to impose DoC?
Neighbour Principle (donoghue v stevenson) “so closely and directly affected by my act that I ought reasonably to have them in my contemplation”
Consider whether you have seen any other cases where there has/has not been a duty of care in similar circumstances.
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Were the risks known? [see Roe v Minister of Health - no risk foreseen as it was beyond state of scientific knowledge at the time]
Were the risks high [magnitude of risk]? [see Bolton v Stone - cricket, only 6 times in 28 years]
Was the extent of possible harm high? [see Paris v Stepney BC - C already blind in one eye so any shard in his good eye would leave him totally blind]
Was it practical to take precautions? [see Latimer v AEC - no breach as D had already taken reasonable precautions]
Was there any public utility in D’s conduct? [see Watt v Hertfordshire - unsecured jack on flatbed truck, D (fireman) injured but no breach as public utility high]
Query whether the defendant owes a different level of care because of their special circumstances (e.g. if they are children [lower standard - see Mullin v Richards] or professionals [higher standard - see Bolam v Friern]).
Consider whether you have seen any other cases where there has/has not been a breach of duty in similar circumstances.
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Consider the ‘but for’ test from Chelsea v Barnett if there is just a single potential cause of harm.
If necessary, consider whether there were multiple causes - but it is still the ‘but for’ test (see Wilsher v Essex).
If necessary, consider whether there were multiple causes - but it is still the ‘but for’ test (see Wilsher v Essex).
If necessary with multiple successive causes, consider Performance Cars v Abraham (first defendant has to pay, second defendant causing the same harm gets ‘lucky’ and doesn’t have to pay) or Jobling v Associated Dairies (pre-existing health conditions which would have affected C regardless of D’s conduct may reduce the available compensation).
If necessary with multiple simultaneous causes, mention the fact that there is no compensation for ‘loss of a chance’ (see Hotson). But that in certain cases involving industrial accidents, compensation may be available where the defendant ‘materially increased the risk of harm’ (see McGhee v NCB, Fairchild v Glenhaven).
Consider whether you have seen any other cases where there has/has not been a breach of duty in similar circumstances
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Consider the test from Wagon Mound No.1 (‘reasonably foreseeable’).
Note that the type of damage should be foreseeable (see Wagon Mound No.1) but the precise manner in which the harm was suffered does not (see Bradford v Robinson).
If the claimant suffers extra harm as a result of a pre-existing vulnerability, then any extra harm will be recoverable (see Page v Smith).
Consider whether you have seen any other cases where there has/has not been a breach of duty in similar circumstances
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Consider volenti non fit injuria [‘consent’, sometimes just referred to as ‘volenti’], where necessary. Defendant must show that claimant had knowledge of precise risks involved [see Stermer v Lawson]..
Defendant must show that claimant had a free choice about whether to accept the risk of harm [see Simms v Leigh RFC]. Defendant must show voluntary acceptance of the risk of harm [see Froom v Butcher].
Consider contributory negligence, where necessary.
Claimant has to have breached the standard of care that they owed to themselves.See Law Reform (Contributory Negligence) Act 1945.Reduction in damages claimed is variable.