Negligence
Intro
 No duty to do good but there is a duty not to cause harm
 DOC defines the interests protected by tort of negligence
 Not all careless conduct is actionable. Condition: must be DOC and a
breach to it – Lord Wright in Lochgelly’s case
DUTY OF CARE
For history: refer to Donogue and Ann’s cases respectively
Test: Caparo
1. Foreseeability – Topp v London Country Bus/ Home Office v Dorset Yacht
2. Proximity – Bournhill v Young
3. Fair, just, reasonable
Factors to influence: (C author of own misfortune – Peabody case/ public duty
+ Art 3 & 6 ECHR – X v Bedfordshire County Council)
Guidelines for novel cases (you can use them as a guideline for problem
questions as well – have not included all just the important ones):
1. Pre-existing relationship
2. Kind of damage suffered
3. D was careless or failed to do something
*Simple duty situations
a. D owes duty to stop or prevent another person from injuring the C
when that person is under C’s control: Home Office v Dorset Yacht
b. Liability of lawyers – Arthur JS Hall
BREACH
Standard of Care
1. Ordinary Act (subject to reasonable man’s test – Blyth case)
Cases where reasonable man standard assessed differently:
Nettleship (inexperienced driver), Roberts (unable to control vehicle/
emergency), Mansfield (driver unaware of medical condition)
OR
2. Professional skill
a. Doctors - Bolam (McNair J), Bolitho
b. Bolam test applied also for duty to disclose risks
c. Not necessary to have professional qualification. Exercise of special
skill sufficient – Adams
OR
3. Special cases
Children – SOC for child adjusted to his age (Mullins)
Sports – risks taken to be incidental to sports (Woolridge), fellow
competitors (Harrison), momentary lapse or error of judgement not a
breach (Caldwell)
Factors Affecting Breach
1. Magnitude of Risk**
a. Likelihood of injury – frequency of occurrence (Bolton cf Miller)
b. Seriousness of Injury risked – Paris
2. Practicality of Precautions**
Precautions taken must be reasonable – Latimer, Wilson
3. Utility of D’s Conduct
If D’s conduct has moral merit and high social utility then standard of
care is lower – Watt
4. State of Knowledge
Cannot use hindsight to determine breach. D must be judged according
to the standards of that time - Roe
Proof of Breach
Gen rule: Burden of Proof on C
Exceptions: res ipsa loquitor – Scott v London.
Conditions:
cause must be unknown (unknown cause is a great disadvantage to C so D
would be the best person to explain)
D must be in control of the situation (C must show the fact accident is outside
of D’s control is unlikely - Lloyd)
ordinarily accident should not have happened if D had taken proper care
(Cassidy)
CAUSATION
“But-for” test: Barnett**
Material contribution test: Bonnington**
Material increase in risk test” McGhee
Causation NOT established: Wilsher
Multiple D’s: Fairchild
REMOTENESS
Test:
1. Direct consequence – Re Polemis
2. Reasonable foreseeability - Wagon Mound
a. Type of harm must be foreseeable (Wagon Mound)
b. Means by which harm is caused need not be (Hughes)
Measure of damage:
1. Egg shell skull rule – Smith