Term
Duty of Care:
Established Situations |
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Definition
Certain situations are already established as giving rise to an automatic duty of care:
- Road users
- Solicitor- client
- Employer- employee
- Manufacturer- consumer |
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Term
Duty of Care:
Neighbour Principle |
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Definition
Donoghue v Stevenson [1932]
Neighbour is a person close enough to one that one ought reasonably to bear them in mind when acting or omitting to act. |
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Term
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Definition
Caparo v Dickman: 3 part test
- Reasonable foresight of harm
- Sufficient proximity of relationship
- It must be fair, just and reasonable to impose a duty |
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Term
Duty of Care:
Caparo: reasonable foresight of harm |
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Definition
D must have been able to foresee the risk of at least some harm occurring.
Bourhill v Young: Damage must have been of a reasonable type. |
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Term
Duty of Care:
Caparo: proximity of relationship |
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Definition
| What constitutes proximity depends on the facts of the case. |
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Term
Duty of Care:
Caparo: Fair Just and Reasonable |
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Definition
It must be fair just and reasonable to impose a duty.
Hill v Ch Const West Yorkshire
Capital & Counties v Hampshire CC |
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Term
Breach of Duty - Standard of Care:
Reasonable Man |
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Definition
General standard of care is that of the reasonable man (Blyth v Birmingham Waterworks)
Standard is in context of D's position (Glasgow Corp v Muir) |
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Term
Breach of Duty - Standard of Care:
Children |
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Definition
Mullins v Richards
Standard of care for children is that of the reasonable child of the defendant's age. |
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Term
Breach of Duty - Standard of Care:
Professional and Skilled D |
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Definition
Bolam v Friern HMC
Bolitho v City and Hackney HA
Standard of care is that of the reasonable person professing to have or exercising that skill at that level. |
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Term
Breach of Duty - Standard of Care:
Objectivity of the test |
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Definition
The reasonable man test does not allow for personal inexperience: Nettleship v Weston
Nor does the reasonable professional test: Wilsher |
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Term
Breach of Duty - Other factors:
Degree of probability of harm occurring |
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Definition
Bolton v Stone:
If the risk of harm is low, then a reasonable man will be justified in ignoring it.
D must take reasonable care in ALL circumstances: Haley v London Electricity Board. |
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Term
Breach of Duty - Other factors:
Severity of harm likely |
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Definition
Paris v Stepney LBC:
Where the harm that could be suffered is much worse, then the standard of care in that case will be set higher |
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Term
Breach of Duty - Other factors:
Utitility of D's Conduct |
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Definition
Daborn v Bath Tramways:
If D's conduct is beneficial, then this will justify the risk. (I.e. risk of accidents for public transport.)
Emergencies: Watt v Hertfordshire CC |
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Term
Breach of Duty - Other factors:
Practicability of precautions |
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Definition
Latimer v AEC Ltd:
If D has taken reasonable care to avoid harm, and further precautions are impracticable, then he has met the standard of care. |
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Term
Breach of Duty - Res Ipsa Locquitur:
Res Ipsa... |
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Definition
"The thing speaks for itself." If res ipsa applies, courts infer that D was negligent without hearing detailed evidence. D must prove that he was not negligent.
Scott v London and St Katharine Docks |
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Term
Breach of Duty - Res Ipsa Locquitur:
Conditions for application |
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Definition
1: Thing causing damage is under D's control (Gee v Metropolitan Railway Co)
2: Damage must be of the sort that only occurs as a result of negligence (London St Katharine Docks)
3: Accident must be unexplained (Barkway v South Wales Transport Co) |
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Term
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Definition
Barnett v Chelsea and Kensington HMC:
"But for D's conduct, would damage have occurred?" |
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Term
Causation:
Multiple Causes (Material Contribution) |
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Definition
| Bonnington Castings v Wardlaw: a cause must have materially contributed to damage. |
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Term
Causation:
Multiple Causes (Balance of Probabilities) |
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Definition
| Wilsher v Essex Area HA: If one of the multiple causes is no more likely to have happened than any of the others, then the case does not satisfy the balance of probabilities. |
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Term
Causation:
Multiple Causes (Material increase of Risk) |
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Definition
McGhee v National Coal Board
A defendant may be liable if they materially increased the risk of harm. |
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Term
| Causation: Asbestos cases with multiple negligent employers |
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Definition
Appropriate test is from McGhee: material increase of risk of harm.(Fairchild)
All defendants are jointly and severally liable (s.3 Compensation Act 2006) |
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Term
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Definition
Hotson v East Berkshire Area HA:
Courts will not grant damages for lost chances if the original odds were below 50% |
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Term
| Causation: Multiple Consecutive Causes |
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Definition
Performance Cars Ltd v Abraham:
Where are are consecutive causes of the same damage, the but for test will be applied to the original cause. |
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Term
| Causation: Multiple simultaneous defendants |
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Definition
Fitzgerald v Lane:
Where two defendants simultaneously negligently cause damage, the court will apply the McGhee test. |
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Term
| Causation: Novus Actus Interveniens |
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Definition
Causation requires an unbroken causal link. An intervening act may break the chain and thus D will not be liable. The intervening act may be:
- a third party act
- the act of the claimant
- and act of nature |
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Term
| Causation: Novus Actus Interveniens (Third party acts) |
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Definition
Original D will be liable if the intervening act did not cause damage (Knightley v Johns)
Whether the intervening act breaks the chain of causation is a question of fact: Baker v Willoughby; Jobling v Associated Dairies Ltd. |
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Term
| Causation: Novus Actus Interveniens (Act of the claimant) |
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Definition
Where C's act is a NAI, C will become liable for his own damage. (McKew v Holland and Hannen Cubitts)
For C's act to be a NAI, it must be unreasonable in all the circumstances (Corr v IBC Vehicles Ltd.) |
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Term
| Causation: Novus Actus Interveniens (Act of Nature) |
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Definition
| Acts if nature will not usually break the chain of causation. However, the defendant will not be liable when the act of nature is unforeseeable and separate from his original act. (Carslogie Steamship Co Ltd v Royal Norwegian Government) |
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Term
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Definition
Original Test from Re: Polemis.
Courts now prefer test from The Wagon Mound [no.1]): The test for remoteness is reasonable foreseeability of the kind or type of damage suffered by C. |
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Term
| Remoteness: Thin Skull Rule |
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Definition
Smith v Leech Brain Co. Ltd:
If the type of injury is foreseeable, but, due to some pre-existing condition that C has, the severity is not, D is liable for ALL the damage caused. |
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