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Negligence - Coggle Diagram

- - - - Barnett v Chelsea and Kensington Hospital Management Committee (1968)
  - - - usually involve medical negligence. it is where the claimant will have a percentage chance of being cured, but that percentage is reduced by the doctor's delay in diagnosing or treating the illness. The court has to decide if the delay can be said to have caused the patient not to be cred, or whether that would have been the situation even if the doctor had not acted negligently.
        
        Hotson v East Berkshire Area Health Authority; showed that in loss of a chance of recovery cases, claimant must prove causation on the balance of probabilities. Claimaint must prove that it was more likely than not that the negligence caused the injury.
        
        Gregg v Scott; liability for loss of chance should not be introduced to increase claims.
    - - where two independent events cause the damage, and the second defendant's breach of duty causes the same damage as that caused by the first defendant, the first event should be treated as the cause (Baker v Willoughby)
      - Jobling v Associated Diaries - Liability for the claimants first injury and the later disease was placed on the defendant as the disease was bought on by natural causes.
      - Fitzgerald v Lane - it was not possible to prove who caused the harm so both defendants were liable
    - - when there is more than one defendant, who could be responsible for the harm, in whole or in part?
      - Holtby v Brigham and Cowan - if there are multiple tortfeasors, a defendant will be liable if it can be shown that the defendant made a material contribution to the harm suffered.
      - Fairchild v Glenhaven Funeral Services - each defendant will be liable if it can be shown that they made a material contribution to the risk of harm
      - Barker v Corus UK ltd - the defendants contribution to the harm was limited to the extent that they negligently exposed the claimant to harm
      - Sienkiewicz v Greif - material contribution to harm was said to be 18%
    - - when there is more than one possible cause of damage, the courts have modified the 'but for' test, in an effort to find a way of deciding whether liability should be imposed on the defendant. Initially the courts looked at whether the defendant's conduct led to a material increase of harm.
      - McGhee v NCB - where there is more than one possilbe cause of harm, causation can be provided if the defendant's negligence materially increased the risk of harm.
      - Bailey v Ministry of Defence - if medical science cannot prove that 'but for' the defendant's negligence the damage would not have happened, the claimant can prove causation if the defendant made a 'material contribution' to the damage.
      - Wilsher v Essex Area Health Authority - the claimant must prove, on the balance of probabilities, that the defendant's negligence was a material cause of their inquiry. it is not sufficient to show that the defendant merely increased the risk of the damage.
  - - - intervention by the claimant
        
        Mckew v Holland and Hannen and Cubitts - no liability for the additional injuries as the claimants decision to walk down steep stairs with weakened legs was an intervening act
        
        Wieland v Cyril Lord Carpets - there was liability for harm caused following the use of bifocal glasses as the wearing of the glasses was not an intervening act as it wasnt unreasonable and didnt break the chain.
        
        Spencer v Wincanton Holdings - failure to wear a false leg was not an intervening act but was considered to be contributory negligence so that a fair result could be achieved.
      - intervention by a third party
        
        if the defendants breach of duty is followed by a third-party act that also causes the claimant damage, the court has to decide the extent to which the defendant is liable. if the third party action is an intervening act, the defendant will not be liable for any harm occuring after the second act. in order to break the chain of causation, the third-party action must be voluntary and independent of the breach of duty
        
        Knightley v Johns - no liability as the police inspector's negligent behaviour was an intervening act
- - - - 'persons who are so closely and directly affected by my act that i ought reasonably to have them in contemplation as being so affected that, when i am directing my mind to the acts and omissions which are called in question'
  - - - decided that in the future a) claimant must point to an existing precedent or similar precedent where a duty had been imposed or b) if no relevant precedent as case presented novel situation, court should apply three criteria to decide if theres a duty of care
        
        1) reasonably forseability
        
        defendant must have foreseen some damage to the claimant at the time of the careless act. damage must be of a kind thats foreseeable. the test fore foreseeability is based on what a reasonable person foresaw, not what particular defendant foresaw.
        
        Bourhill v Young (physical harm foreseeable, psychiatric not), Haley v London Electricity Board (blind claimant, tripped on hammer there to prevent pedestrians walking further, fell, came nearly deaf, court held def's duty of care exteneded to those who might reasonably be expected to walk along pavement, included blind people)
        
        2) proximity
        
        existing relationship between parties, legal or physical proximity.
        
        courts require very close relationship for cases involving psychiatric harm and pure economic loss. claims involving personal injury - proximity easier to prove
        
        Hill v Chief Constable of West Yorkshire, Swinney v chief constable of northumbria police (stolen tape)
        
        3) fair, just and reasonable
        
        courts take into account wider issues such as policy considerations. allows court to have discretion when deciding whether or not to impose duty on defendant.
        
        three part test in caparo has been criticised because it doesnt state when a duty of care is owed. however, that wasnt the house of lords' attention to create rigid test, as it would be impractical
        
        in robinson - supreme court justices clarified that caparo is to be used for novel situations, but if theres existing rpecedent, thats to be followed.
        
        Hemmes v Wilson Browne
  - - - main policy reasons that courts rely on are: 1) defendant might assume a defensive approach to their work or provision at the public's expense. 2) liability in tort might undermine protection already provided by common law or an act of parliament. 3) making a person or body liable in negligence might mean they have to diver financial resources awy from public at large to a small number of successful claimants. 4) fear of floodgates opening 5) curshing liability; one defendent is made liable for large amount of compensation that it would be either unfair or economically inefficient to make teh defendent responsible for. 6) cases such as nettleship v weston, show that the courts consider availability of compulsory insurance to the defendant, as courts will be concerned that the claimant is able to actually recover any compensation awarded. however, courts will reflect on teh effect of distributive justice on the wider public, as there may be an increase in insurance premiums to cover all costs of litigation.
    - - recently, the courts have made it clear that there are policy reasons why tort should not be used to impose a duty on local authorities so that individuals can obtain a benefit that should be provided by the state.
      - often the outcome of an action against a local authority will depend on what type of claim is being made. a firm principle is developing that there will be a general duty on the part of local authorities to take care of the welfare of children while they are in education provided by government-funded schools. teh court will impose a duty of care on a local authority, so that a school has to supervise the children who attend it. however, as there is no general duty to take reasonable care of anyone, there are limits on this duty.
      - Phelps v Hillingdon London Borough Council (2001) - a duty of care is owed regarding the provision of educational services.
      - Bradford-Smart v West Sussex County Council - it was not just, fair and reasonable for a school's duty of care to extend beyond school premises
      - Kearn-Price v Kent County Council - there is a duty of care to supervise the welfare of children outside school hours
      - Mitchell v Glasgow City Council - a landlord has not duty of care to a tenant unless there has been an assumption of responsibility for the care of that tenant.
    - - traditionally, solicitors and barristers had immunity from being sued for negligent acts, both inside (Rondel v Worsley) and outside the courtroom (Saif Ali v Sydney Mitchell)
      - however, the application of the law become complicated so things were changed in Hall v Simons (2000). the court stated that the immunity should be removed for a number of reasons: 1) its the job of the court to provide standards of conduct, so an exposure of incompetent practice at the Bar would strengthen the legal system. the house of lords believed the public confidence in the legal system was not high, as there was a perception that the legal system provided protection for the people working in it, no matter how negligent the conduct of the advocate. the law lords recognised that law had become more commercialised and advocates had to have compulsory insurance to cover negligent behaviour and advice. 2) balanced against this, people have much greater awareness of their rights and expect the right to claim compensation if negligent professional services have been provided. 3) in a negligence action against an advocate, the court could be relied on to differentiate between errors of judgement and true negligence. in any event, the claimant would have to establish a casual link between the poor advocacy and the outcome of the claimant's action.
    - - when deciding if a duty of care should be imposed on a police force, the courts distinguish between careless actions while preventing or investigating crime and careless actions during the operational stage of the process. It is clear that, generally, the police have immunity from being sued in negligence during an investigation stage, but this is by no means a blanket immunity, as all the circumstances need to be taken into account.
      - the principle of no liability was established in Hill v Chief Constable of West Yorkshire, and was confirmed in Michael v Chief Constable of South Wales Police
      - this position has been considered more recently in Robinson v Chief Constable of West Yorkshire. the supreme court recognised that there was a positive act by the offices rather than an ommission, as they were arresting a suspect. this was enough to put the police under a duty of care to protect the claimant from a situation of danger that had been created by the police. in applying the three-part test, a duty of care was created, as the claimant's injuries were caused by the actions of the police
      - Robinson is now the key case in this area of law: 1) it established that the police have the same duty of care as other members of the public in limited situations. It appears that any future claim that may place an unrealistic demand on the police, and if the case focuses on an omission rather than an act, will likely fail. 2) the fact that the police cannot be sued for omissions is still a concern; the only resource that a claimant can have in relation to omissions is through the Human Rights Act, specifically Article 6 that entitles a claimant to the right to a fair trial - key case: Osman. 3) Robinson does not change the law in so far as it applies to positive acts done by the police that directly result in harm. However, it is a substantial wearing away of the limits of liability, as the precedent can be extended to be include other positive acts that have been committed.
      - If the police assume a specific responsibility to take reasonable care to keep specific individuals from harm, there may be liability. the categories of people who may be successful include employees, people in custody and police informants.
    - - the main issue with establishing a duty of care between the claimant and the fire brigade is that of proximity as well as the usual public policy issues.
      - Capital Countries plc v Hampshire County Council 1997 - the claimant brought a claim in negligence because when the fire brigade arrived at the scene of a fire, an order was made to turn off the sprinkler system that had been operating. One issue was whether there was a sufficient degree of proximity. the court held that the fire brigade's attendance at the scene did not provide the required degree of proximity. this followed on from the fact that there is no duty to attend a fire in the first place. the incompetence of the fire brigade in ordering the sprinklers to be turned off created a new source of danger to the claimant.
    - - a 999 call creates a duty of care to the claimant (Kent v Griffiths)
- - - - foreseeability of risk
        
        the risk of harm has to be within the defendant's reasonable contemplation. a person is not responsible for unforeseeable events. the risk has to be identified before or at the time of the incident. as soon as the defendant foresees a risk, it must be guarded against, as not doing so would be a breach of duty.
        
        Roe v Minister of Health (1954): the claimant went to hospital for minor surgery and came out permanently paralysed from the waist down. A sterilising fluid seeping through invisible cracks in a glass tube contaminated the anaesthetic contained in it that was injected into the spine during the operation. At the time of the incident, in 1947, the risk of this happening was not known because there had not been a similar incident, so there was no liability.
        
        Walker v Northumberland County Council (1995): The claimant was a social worker who suffered a mental breakdown because of stress and pressure at work. He was off work for three months. When he returned to work, the council (defendant) agreed to give him support to reduce his workload, but this was not done properly. Six months later, the claimant had a mental breakdown and was dismissed from his job because of ill health. He sued for negligence and was successful because it was foreseeable that a continuation of the stress he suffered would damage his mental health, and the defendant was negligent in failing to take reasonable steps to prevent it.
      - magnitude of the risk
        
        If a person has a duty of care to someone, that person must guard against the risk of harm being done. The size of the risk must be balanced against the action that is being taken to avoid the harm. The defendant must take into account any factors that could increase the risk, such as the claimant's disability. In Haley v London Electricity Board, the claimant was successful as it is foreseeable that a blind person may walk by and be at risk of harm; this risk was not addressed.
      - extent of the possible harm
        
        This is called the 'think skull' rule. It means that the defendant must take the victim as they find them. things like religious beliefs, illnesses etc. things that may have an impact on the harm caused by the claimant.
        
        Paris v Stepney Borough Council (1951): The defendant employed the claimant, who had sight in one eye only, as a mechanic. As part of his job, he had to do welding. At that time, it was not usual to supply goggles to men involved in this type of work. A piece of metal flew into the claimant's sighted eye and he became completely blind. The defendant was liable, although they would not have been liable to a person with normal sight. The greater risk to the claimant meant that greater precautions had to be taken.
      - social usefulness of the activity
        
        The defendant may be found not liable if it is possible to show that taking the risk was justified, for example to avoid a potentially worse situation or to save someone. The taking of any risk at all cannot be justified, and the court must take into account all the circumstances.
        
        Watt v Hertfordshire County Council (1954): A women was trapped in a car following a car crash. The fire station that was called to the incident had special equipment to deal with this sort of event. It would usually be secured on its own vehicle. However, on this occasion, the vehicle was elsewhere, so the equipment was unsecured when it was taken to the scene. The driver of the fire engine had to brake sharply and the claimant, a fireman, was injured. However, he was not successful in his claim for damages as the need to save a life outweighed the risk taken with the equipment.
        
        Scout Association v Barnes (2010): A the time of the incident, the claimant was 13 years old. He suffered injuries when he was playing a game in the dark with other scouts. The Court of Appeal had to consider what weight needed to be given to the social value of the Scout Association's activities. The court held that the activities were of great social value. However, there was extra risk of harm because the game was being played in the dark, and this was not outweighed by the social value of the activity. The Scout Association was liable for the injuries.
      - practical precautions taken to minimise the risk
        
        The defendant has to do what they can to minimise the risk of harm, but there is a limit to what they can be expected to do before the precautions become burdensome or unrealistic.
        
        Latimer v AEG Ltd (1953): on the day of the claimant's accident, there was an exceptionally heavy rainstorm that flooded the whole of AEGs factory. Oil rose to the top of the floor surface, so when the water drained away the surface was covered with an oily film. The defendant tried to clean the surface using all the sawdust available to the, but a small area of the factory remained oily. The claimant went on duty, unware of the problem. As he was trying to put a heavy barrel on a trolley, the claimant slipped on the surface and was injured. In the circumstances, the defendant had taken all possible precautions and the only other alternative to minimise the risk was to close the factory, which was unrealistic. The defendant was not liable to the claimant.
      - common practice in relation to the risk
        
        The fact that something is generally practiced is strong evidence that the action/activity is not a negligent act, but it may be regarded as a negligent practice.
        
        Brown v Rolls Royce (1960): The claimant contracted a skin disease at work. His employers provided washing facilities but not a protective cream which was commonly used in the car industry. There was no liability imposed because there was no evidence that even if it were supplied, the protection cream would have prevented the skin disease.
  - - - ..
        
        consent to treatment
        
        examination of patient and diagnosis
        
        choice of treatment given to the patient
        
        doctor's level of expertise