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Negligence - Coggle Diagram
Negligence
Factors that effect Standard of care;
1) Could the D have taken any practicable Precautions?
2) Were there any special characteristics of the C that should have been considered?
3) Were there any benefits in taking the risk?
4) What was the degree of risk?
1) Precautions; The courts will consider whether the D could have taken any precautions to prevent the damage from happening. If so, and they failed to do so, then they will have breached their DOC. Latimer v AEC; D owned factory that flooded and the water mixed will oil to become very slippy. D's had removed the water and covered the floor with saw dust to prevent an accident. The c slipped on the floor and suffered an injury. The C made a claim under the tort of negligence. It was held that it was unreasonable to ask the owners to close the factory and this would have been the only way to prevent an injury. They had taken sufficient steps by putting sawdust down.
2) Characteristics of claimant; There are situations where a c should be owed a higher standard of care than anyone else, could be due to disability.
Paris v Stepney; C was blind in one eye and was given work by his employers which involved a small risk of injury to the eye. The good eye got damaged by piece of metal and he became totally blind. Employers had breached DOC. It was held that the D's owed the c a higher standard of care due to his eye condition and they fell below the standard expected, therefore breached their DOC.
3) Public Benefits of risk; Courts will consider whether there were any benefits of taking the risk.
Watt v Hertfordshire; Fire brigade was called to fire which need special equipment. However, the vehicle they needed to transport that equipment was not at the fire station. They decided to use another vehicle and the equipment fell and injured a man. The man made a claim under the tort of negligence.
It was held that the potential benefits of the risk outweighed the harm, therefore they had not breached their DOC,
4) Degree Of Risk; Courts will look at likelihood of damage and if the risk is foreseeable: Likelihood of harm/damage (Bolton v Stone). Special characteristics of c (Paris v Stepney). Cost of taking precaution (Latimer). Benefits of risk (Watt v Hertfordshire)
Professionals - owe a higher standard of care;
Bolam v Friern; Doctors don't have to be perfect but they do have to excersise skill of a reasonable body of other medical professionals.
Junior Doctor - Same duty of care as a qualified doctor;
Wilsher v Essex; Baby given too much oxygen by junior doctor. Baby got blind in one eye.
Held that D was in breach of duty as the junior doctor owes the same standard of care as a qualified doctor.
Young people - will owe a lower standard of care;
Mullin v Richards; 2 15 yr old girls fight with rulers. Ruler snapped and splinter wet into girl's eye causing blindness. Held that the girl was only expected to meet standard of reasonable 15 year old girl.
To make a claim under negligence, the claimant must prove;
1) D owed them a DUTY OF CARE.
2) D BREACHED the duty of care
3) This breach caused DAMAGE.
Duty of Care;
Donogue v Stevens; Friend brought her a drink of ginger beer. Donogue drinks it an pours rest out to find dead snail. She became very ill.
Held that the HOL created the neighbour test and said that a person should take reasonable care to avoid any acts which are likely to injure their neighbour.
Current Test;
Caparo v Dickman - 3 part test;
1) Was damage or harm forseeable?
2) Is there a sufficiently proximate or close relationship between the claimant and the d?
3) Is it fair, just and reasonable?
Robinson v Chief; Robinson knocked over by 2 police officers who were apprehending a drug dealer.
Held that the Caparo test doesn't have to be strictly applied in every case, instead courts should look to existing precedents.
Was the damage foreseeable?;
Kent v Griffiths; Ambulance called to take claimant to hospital. Ambulance failed to arrive within a reasonable time. Claimant suffered respiratory arrest.
Held that the damage suffered by the c was reasonably foreseeable.
Was there sufficiently close enough proximity between C and D?;
Bourhill v Young; C heard speeding motercyclist hit another car. She waited a short while and saw blood on the floor. Suffered shock and gave birth to still born baby.
Held that the damage suffered by c wasn't reasonably foreseeable.
However...
Mcloughlin v Obrien; C suffered severe shock and depression after arriving at hospital as she had been told of an accident involving her husband and her children. She claimed against lorry driver for the psychiatric damage she suffered.
Held that the appeal was allowed and the c was entitled to recover for the psychiatric injury. HOL extended the class of persons to include those who come within the immediate aftermath of the event.
Fair, just and reasonable?;
Hill v Chief; Police believed peter sutcliffe was the yorkshire ripper. They didn't arrest him and he murdered his last victim.
Held that the Family of victim made claim against the police and courts said that the damage was reasonably foreseeable and there was not proximity between c and d as there was nothing linking the police and the victims family.
However, courts will impose DOC on public authority if they think they need its fair, just and reasonable.
Capital and counties v Hampshire; There was a fire at the c's premises. Fire brigade turned up and ordered that the sprinkler system be turned off. The fire spread and caused 16mill worth of damage.
Held that it was fair, just and reasonable to impose duty on public authority as turning off sprinkler system substantially increased risk of damage.
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Remoteness of Damage; Wagon Mound; D's responsible for oil spill in Sydney Harbour. Few day's later sparks flew on to the water and set alight. This caused property damage to properties. Owner's of properties sued the D;s company. It was held that the D's clearly caused the damage but the damage wasn't foreseeable and was too remote and the c's weren't entitled to compensation.
Consideration; When considering remoteness of damage, courts are concerned with whether the damage itself was foreseeable not how the damage actually occurred.
Hughes v Lord Advocate; C's were injured when they knocked unattended lamps into a manhole. Held that the courts said the type of injury was foreseeable, even if the way it happened (explosion) wasn't.
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Damage; Usually related to personal injury or property damage. C must prove that the breach of duty caused the damage - to prove this, the courts will apply the law of causation (BUT FOR test).
Barnett v Chelsea; Patients had been vomiting for 3 hours after drinking green tea. Nurse reported complaints and got told to tell them to go home to bed and call their own doctors if they still felt ill in the morning. One of them died.
It was held that the damage was caused by the initial poisoning and the c would have died even if the hospital would have treated him. Therefore the d's weren't negligent, meaning the c's wife wasn't entitled to compensatory damage.
The Thin Skull Rule; Courts will also consider the thin skull rule and will take the c as they find them.
Smith v Leech Brain; Due to d's negligence, c incurred a burn to his lip. lip contained pre-cancerous cells which were triggered by the injury sustained. He died three years later from cancer. Thin Skull rule applied.