Possible Civil Liability Knowledge Questions 1 amp 2 Duty Explain how the law decides whether a duty of care is owed in negligence 8 A claimant proves that a duty of care is owed using ID: 541135
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Slide1
Civil Law Knowledge QuestionsSlide2
Possible Civil Liability Knowledge Questions (1 & 2)
Duty
:
Explain how the law decides whether a
duty of care
is owed in negligence (8)
A claimant proves that a duty of care is owed using
the three-part test
set out in the case of
Caparo
v
Dickman
. Explain the
Caparo
three-part test (8)
Breach
:
Explain
how the law decides whether a duty of care has been breached
, including any
two risk factors
which may affect the court’s decision (8)
Breach of duty requires the defendant’s conduct to have fallen below the standard of the reasonable man. This is decide by applying one or more of various risk factors. Outline
what is meant by the reasonable man
and briefly explain
one of the risk factors
(8)
Breach of duty requires the failure to reach the standard of care of the reasonable man, taking into account various risk factors. Briefly explain
three risk factors
(8)
Damages
:
Damage in negligence involves the rules of
factual causation
and the rules of
remoteness of damage
. Explain these rules (8)Slide3
Explain
how the law decides whether a duty of care is owed in negligence (8 marks
) / A claimant proves that a duty of care is owed using
the three-part test
set out in the case of Caparo v Dickman. Explain the Caparo three-part test (8)
Donoghue v
Stevenson
established the
neighbour principle
in relation to duty of care.
Caparo
v
Dickman
set out a more detailed
3
part
test.
Firstly, foreseeability which is an
objective test,
asks would
a
reasonable person in D’s position
have foreseen that someone in C’s position might be injured?
In
Kent
v Griffiths
it was established that an ambulance service owed a duty of care to a member of the public on whose behalf a 999 call had been made as it was
reasonably foreseeable
he would
be further injured if the ambulance failed
or took too long to arrive.
The second test is proximity which means closeness and can
be by
space, time or relationship
In
Bourhill
v Young
the C did
not see
a motorcycle accident
and was a safe distance away from
it
but decided
to go and see what had
happened. She suffered
shock
and
claimed
this caused
her to
miscarry. It was held
that
D did not owe her a duty of care
as she
chose to see the aftermath voluntarily
therefore there was no proximity.
The final test is whether it
is fair, just and reasonable to impose a duty of
care. This test will consider whether imposing a duty would open
the
“floodgates of litigation”
by
encouraging a huge number of
claims, which the court would wish to avoid. The court will also consider what
is
best for society as a whole
and Ds
in the public sector are more likely to have claims against them fail as it is not fair, just and reasonable to impose liability on
them.
F
or example in
Hills
v Chief Constable of West Yorkshire
the court held there was no
duty of care on the police to the mother of the Yorkshire Ripper’s last
victim who the police had
already interviewed and released
before
he killed again,
due to the
policy
consideration to allow the police to work as efficiently as
possibleSlide4
Explain
how the law decides whether a duty of care has been breached
, including any
two risk factors
which may affect the court’s decision (8)Blyth v Birmingham Waterworks Co. established that D must breach their duty of care by failing to reach the standard of care of the reasonable man who is
the
ordinary person performing the particular task
The standard expected of the reasonable man will
vary
depending on the
individual skills expected on that type of person
In
Nettleship
v Weston the
court held that the
learner driver’s standard of driving should be that of the reasonably competent driver, not a learner driver and so being a learner or trainee will not affect the standard of the reasonable man.
If D is a professional, he would be judged as a reasonably competent professional. In
Bolom
v
Friern
Barnet Hospital Management Committee
the Court held there was
no breach of duty as the hospital had followed a substantial body of opinion within the profession that supported their course of action
If D is a young person under the principle in Mullin v Richards he
is only expected to meet the standard of a reasonable person of the same age not an adult, s
o in this case D was not in breach of her duty as she had
reached the standard of behaviour required of a 15-year old.
There are various risk
factors which may
raise or lower the standard expected
The court will consider the characteristics of C. In Paris v Stepney Borough Council
the
court held the council owed C a higher standard of care because they knew of his
Latimer v AEC
– D’s factory was flooded after an exceptionally heavy rainstorm. Water mixed with some oil made the floor very slippery. D put up warning signs, passed the message around the workforce, and used all its supply of sand and sawdust to try and dry the floor. Despite this, C slipped and was injured. D owed a duty of care but had
not breached the duty of care as all reasonable practical precautions had been taken in the
circumstancesSlide5
Breach of duty requires the defendant’s conduct to have fallen below the standard of the reasonable man. This is decide by applying one or more of various risk factors. Outline
what is meant by the reasonable man
and briefly explain
one of the risk factors
(8)Blyth v Birmingham Waterworks Co. established that D must breach their duty of care by
failing to reach the standard of care of the reasonable man who is
the
ordinary person performing the particular task
The standard expected of the reasonable man will
vary
depending on the
individual skills expected on that type of person
In
Nettleship
v Weston the
court held that the
learner driver’s standard of driving should be that of the reasonably competent driver, not a learner driver and so being a learner or trainee will not affect the standard of the reasonable man.
If D is a professional, he would be judged as a reasonably competent professional. In
Bolom
v
Friern
Barnet Hospital Management Committee
the Court held there was
no breach of duty as the hospital had followed a substantial body of opinion within the profession that supported their course of action
If D is a young person under the principle in Mullin v Richards he
is only expected to meet the standard of a reasonable person of the same age not an adult, s
o in this case D was not in breach of her duty as she had
reached the standard of behaviour required of a 15-year old.
There are various risk
factors which may
raise or lower the standard expected
The court will consider the characteristics of C.
In Paris v Stepney Borough Council
C was employed as a fitter in a garage. His employer, the local council, knew he only had the use of one eye. While he was using a hammer to remove a bolt on a vehicle, a chip of metal flew off and entered his good eye – he became totally blind. Council did not provide goggles for him to wear as this was not standard practice in 1950. Had C have been fully sighted, the council might not have breached duty of care. But, as they knew he was blind in one eye, the
court held the council owed him a higher standard of care because of this known increased riskSlide6
Breach of duty requires the failure to reach the standard of care of the reasonable man, taking into account various risk factors. Briefly explain
three risk factors
(8)
There are various risk factors which may
raise or lower the standard expectedThe court will consider the characteristics of C. In
Paris v Stepney Borough Council
C was employed as a fitter in a garage. His employer, the local council, knew he only had the use of one eye. While he was using a hammer to remove a bolt on a vehicle, a chip of metal flew off and entered his good eye – he became totally blind. Council did not provide goggles for him to wear as this was not standard practice in 1950. Had C have been fully sighted, the council might not have breached duty of care. But, as they knew he was blind in one eye, the
court held the council owed him a higher standard of care because of this known increased
risk
The court will also consider whether D has taken reasonable precautions. In
Latimer
v AEC
– D’s factory was flooded after an exceptionally heavy rainstorm. Water mixed with some oil made the floor very slippery. D put up warning signs, passed the message around the workforce, and used all its supply of sand and sawdust to try and dry the floor. Despite this, C slipped and was injured. D owed a duty of care but had
not breached the duty of care as all reasonable practical precautions had been taken in the
circumstances
The court will also consider whether there is a benefit to taking the risk, sometimes
called
public utility (usefulness)
,
and if there is this
will be balanced with the
risk. In
Watt
v Hertfordshire County Council
–
firefighters
were injured by lifting gear when travelling an a vehicle not specifically fitted for carrying that gear. The appropriate vehicle was already in use attending an emergency when the call came in to go to another emergency where a woman was trapped under a heavy vehicle. Court held that they must
“balance the risk”
– the
benefit of saving the woman was greater than the risk of injuring
firefighters
by using a vehicle not suited to carrying the heavy gear – duty not breachedSlide7
Damage in negligence involves the rules of
factual causation
and the rules of
remoteness of damage
. Explain these rules (8)Factual causation uses the “but for” test which is satisfied if but for D’s act or omission, C would not have suffered the loss or harm
In
Barnett v Chelsea and Kensington Hospital Management Committee
a medical casualty officer failed to follow normal practice and speak to or examine a patient. About 5 hours later, he died from arsenic poisoning and medical opinion was that it was likely C would have died from the poisoning even if he had been admitted to hospital and treated therefore there was no factual causation and no liability.
C’s claim will still fail if the damage suffered is
too remote
D is only liable for damage if it is the
foreseeable
consequence
of his breach
In
The Wagon Mound
– D spilt oil which spread over the water to C’s wharf. C was welding and the molten metal fell on floating cotton which smouldered and ignited the oil. C’s wharf was severely damaged. The court held that the damage by the oil was foreseeable but the damage by the fire was too remote and was not foreseeable.
Next we look at the
kind and type of damage
and as long as the type of damage is foreseeable it doesn’t matter that the form it takes is unusual.
In
Bradford v Robinson Rentals
C it was held that it was foreseeable that C would suffer some cold-related injury so D was liable for C’s frostbite even though the specific injury was unusual as it was the same type of damage.
Finally, D must
take C as he finds him
which means he is still liable if C had a pre-existing condition that made the injury worse
In
Smith V Leech Brain
– a minor burn on C’s face triggered his pre-existing cancerous condition and he developed cancer. As some minor injury was at least foreseeable and C’s extreme reaction was a result of his condition, D had to take C as he found him and was therefore liable.