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Negligence - Coggle Diagram
Negligence
Breach of Duty
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The objective standard varies for professionals and children. Professionals are compared to a competent body of fellow professionals (Bolam v Friern). Children are judged according to the standards of the reasonable child of the same age (Mullin v Richards).
Regardless of experience, D will be judged according to those objective standards (Nettleship v Weston; Wilsher v Essex Area Health Authority)
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- Has C any special characteristics which should have been taken account of? (Paris v Stepney). These are only relevant if they were known to D
- What is the size of the risk? This refers to the probability of the risk of injury occurring; if it is quite likely the risk of injury will occur, the reasonable person should take greater care (Haley v LEB; Bolton v Stone).
- Have all appropriate precautions been taken? The courts will consider the balance of the risk involved against the effort of taking adequate precautions (Latimer v AEC ltd.)
- Were the risks known about at the time of the accident? If the risk was not known, there cannot be a breach (no retrospective breach)
- Is there a public benefit to taking the risk? Look at the social utility of D's conduct. If there is an emergency then greater risks can be taken and a lower standard of care can be accepted (Watt v Hertfordshire County Council)
Duty of Care
Lord Atkin established the 'neighbour principle' in the case of Donohue v Stevenson (first principle). 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour'. A neighbour is 'someone so closely and directly affected by my act that I ought to have in contemplation'
This was used until 1990 when Caparo v Dickman established a 3 part test to determine whether D owed C a duty of care:
- Was harm/damage reasonably foreseeable?
- Is there a sufficiently proximate relationship between C and D?
- Is it fair, just and reasonable to impose a duty?
If it is well established a duty should be owed and there is no public policy reasons why it shouldn't, you do not have to go through the Caparo test (Robinson v CC of West Yorkshire) eg. Doctor/Patient, Teacher/Student, Driver/Passenger etc. We only use the Caparo test in novel situations.
- Asks whether the reasonable person would have foreseen some damage to C at the time of the alleged negligence- objective. That particular type of harm does not have to be foreseen (Kent v Griffiths)
- A duty of care will only exist if there is a connection between C and D. This can either be through an immediate relationship eg. close family or closeness in time and space (Bourhill v Young; McLoughlin v O'Brien)
- It must be fair, just and reasonable to impose a duty. It is likely to be fair, just and reasonable if it will help raise standards of care. The courts will also consider practicalities eg. whether D will be insured to meet a claim (like how all drivers must be insured) (Hill v CC of West Yorkshire)
Damage
Causation
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Legal causation- an unforeseeable and overwhelming act of C themselves, a 3rd party (Knightley v Johns) or a natural event (Carslogie) may break the chain of causation
Remoteness of damage
The damage must not be too remote from the negligence of D, meaning the injury/damage must be reasonably foreseeable (The Wagon Mound).
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As long as the general type of damage is reasonably foreseeable, it will not be too remote even if the damage is more serious than expected, or if it happened in an unexpected way (Bradford v Robinson Rentals)
Eggshell Skull Rule- D must take C as he finds them. If the type of injury/damage is reasonably foreseeable, but is much more serious because C had a pre-existing condition, then D is liable for the subsequent consequences (Smith v Leech Brain Co.)
Occurs when a claimant suffers damage (personal injury/ property damage) as a result of D's negligent action/ omission.
Negligence was defined in Blyth v Birmingham waterworks as 'failing to do something the reasonable man would do, or doing something the reasonable man would not do'
D will be liable if C can prove on the balance of probabilities that;
- D owed C a duty of care
- D breached said duty
- The breach of duty caused damage that was reasonably forseeable