Topic 1
Topic 1
Negligence
test
Topic 1
Negligence test: duty of care
Duty of care
Topic 1
Negligence test: duty of care
Question 1
Which case established the ‘neighbour principle’?
Topic 1
Negligence test: duty of care
Answer 1
The ‘neighbour principle’, established by Lord
Atkin in Donoghue v Stevenson (1932), was the
traditional way in which a court decided if a duty
of care was owed.
Topic 1
Negligence test: duty of care
Question 2
What are the requirements of the ‘neighbour
principle’?
Topic 1
Negligence test: duty of care
Answer 2
The principle considers the question ‘who in law is
my neighbour?’, to which Lord Atkin responded:
…persons who are so closely and directly affected
by my act that I ought reasonably to have had
them in contemplation as being so affected, when
I am directing my mind to the acts or omissions
which are called in question.
Topic 1
Negligence test: duty of care
Question 3
Name two categories of people who owe an
established duty of care.
Topic 1
Negligence test: duty of care
Answer 3
Established categories include doctor and patient,
motorist and other road user etc.
Topic 1
Negligence test: duty of care
Question 4
What is a ‘policy decision’?
Topic 1
Negligence test: duty of care
Answer 4
A policy decision is where a judge decides a case
according to what is in the interest of the public.
Topic 1
Negligence test: duty of care
Question 5
What was the policy decision in Hill v Chief
Constable of West Yorkshire Police (1988)?
Topic 1
Negligence test: duty of care
Answer 5
The mother of a young girl who was murdered by
the Yorkshire Ripper tried to sue the police. She
believed that the police were responsible for her
daughter’s death, in that they had failed to catch
the serial killer quickly enough. The House of
Lords held that it was not in the interests of the
public for the police to be held accountable to the
families of victims for failing to prevent a crime.
Topic 1
Negligence test: duty of care
Question 6
Which case created the new three-stage test for
negligence?
Topic 1
Negligence test: duty of care
Answer 6
Caparo Industries PLC v Dickman (1990).
Topic 1
Negligence test: duty of care
Question 7
What is the three-stage test for negligence?
Topic 1
Negligence test: duty of care
Answer 7
This case laid down the present three questions
that must be addressed in order for a duty of
care to be imposed:
• Was the damage or harm reasonably
foreseeable?
• Is there sufficient proximity between the
claimant and the defendant?
• Is it just, fair and reasonable to impose a duty
of care?
Topic 1
Negligence test: duty of care
Question 8
What are the two ways of establishing proximity?
Topic 1
Negligence test: duty of care
Answer 8
Proximity requires that the claimant and
defendant have a legal connection. This link can
be either a physical connection (Donoghue v
Stevenson, 1932) or a relationship (McLoughlin v
O’Brian, 1983).
Topic 1
Negligence test: duty of care
Question 9
Why was no duty of care owed in Maguire v
Harland and Wolff PLC (2005)?
Topic 1
Negligence test: duty of care
Answer 9
The claimant became ill from exposure to
asbestos that her husband had on his work
clothes. She tried to claim compensation from his
employers. This case dates back to 1965, when
the dangers of asbestos were not known. It was
not foreseeable that she would get ill and,
therefore, her husband’s employers did not owe a
duty of care.
Topic 1
Negligence test: duty of care
Question 10
Which case held that it was not fair for a taxi
driver to owe a duty of care to a drunk passenger
who was run over as he got out of the vehicle?
Topic 1
Negligence test: duty of care
Answer 10
Griffiths v Lindsay (1998).
Topic 1
Negligence test: breach of duty
Breach of duty
Topic 1
Negligence test: breach of duty
Question 1
What must the defendant have done in order to
breach his or her duty of care?
Topic 1
Negligence test: breach of duty
Answer 1
He or she must have done an act or omission that
fell below the standard of care expected of him or
her.
Topic 1
Negligence test: breach of duty
Question 2
Which test is used to establish a breach of duty?
Topic 1
Negligence test: breach of duty
Answer 2
Breach of duty is established using the objective
test, i.e. the standard of the ordinary reasonable
person.
Topic 1
Negligence test: breach of duty
Question 3
How will the defendant’s age affect his or her
breach of duty?
Topic 1
Negligence test: breach of duty
Answer 3
A young person will not have to reach the
standard of care expected of an adult. The
standard would be of an ordinary reasonable
person of the defendant’s age.
Topic 1
Negligence test: breach of duty
Question 4
Which case describes the rules concerning
doctors’ breach of duty?
Topic 1
Negligence test: breach of duty
Answer 4
Bolam v Friern Hospital Management Committee
(1957).
Topic 1
Negligence test: breach of duty
Question 5
What standard is required of doctors?
Topic 1
Negligence test: breach of duty
Answer 5
A doctor is expected to reach the standard of a
person at his or her level in the profession. He or
she would not be expected to reach the standard
of a specialist when he or she is only a junior
doctor. Instead, he or she would need to reach
the standard of the ordinary reasonable junior
doctor.
Topic 1
Negligence test: breach of duty
Question 6
Explain the facts of Bolton v Stone (1951) and
the outcome of the case.
Topic 1
Negligence test: breach of duty
Answer 6
During a cricket match, a batsman hit a ball that
struck and injured the claimant, who was standing
outside the cricket ground. This was a rare
occurrence and the cricket club had built a high fence
to try to prevent this from happening. The court
decided that the defendants were not negligent, as
the likelihood of the risk was low and people cannot
be expected to prevent all accidents.
Topic 1
Negligence test: breach of duty
Question 7
Name a case where the defendant had taken
reasonable precautions.
Topic 1
Negligence test: breach of duty
Answer 7
Bolton v Stone (1951), Wilson v Governors of
Sacred Heart Roman Catholic Primary School
(1997) or Latimer v AEC Ltd (1952).
Topic 1
Negligence test: breach of duty
Question 8
Name a case where the defendant had not taken
reasonable precautions.
Topic 1
Negligence test: breach of duty
Answer 8
Hilder v Associated Portland Cement (1961).
Topic 1
Negligence test: breach of duty
Question 9
In which case did the benefits outweigh the risk?
Topic 1
Negligence test: breach of duty
Answer 9
Watt v Hertfordshire County Council (1954) —
the risk of injury was outweighed by the need to
transport the equipment.
Topic 1
Negligence test: breach of duty
Question 10
Explain the facts of Paris v Stepney Borough
Council (1951) and the outcome of the case.
Topic 1
Negligence test: breach of duty
Answer 10
The claimant was employed as a fitter in the garage of the
defendant borough council. He was already blind in 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, so injuring
it that he became totally blind. He was able to claim
compensation from his employer for not providing him with
safety goggles. The defendant argued that the vehicle
maintenance work that was being undertaken by the claimant
was not dangerous enough to require goggles. The court
decided that the defendant had fallen below the standard of
care required, as it owed a higher standard to an employee
who was more at risk.
Topic 1
Negligence test: damage
Damage
Topic 1
Negligence test: damage
Question 1
Using a case example, explain the ‘but for’ test.
Topic 1
Negligence test: damage
Answer 1
In Barnett v Chelsea and Kensington Hospital
Management Committee (1968), three night watchmen
became sick from drinking tea. The hospital they
attended telephoned a doctor and described the
symptoms. The doctor did not recognise that they had
arsenic poisoning and told them to go home. Evidence
showed that the doctor did not cause their deaths by
not examining them, as they would have died anyway.
Topic 1
Negligence test: damage
Question 2
What did the case of Wilsher v Essex Area Health
Authority (1988) say about cases involving
multiple causes?
Topic 1
Negligence test: damage
Answer 2
The claimant had gone blind. Medical evidence
showed that there were six possible causes of the
blindness. The doctor’s negligence had only been
one of the possible causes, so the doctor was not
negligent.
Topic 1
Negligence test: damage
Question 3
Explain the ‘Fairchild exception’.
Topic 1
Negligence test: damage
Answer 3
In Fairchild v Glenhaven Funeral Services (2002), the
claimant’s husband contracted mesothelioma (a type of
cancer caused by asbestos) and died. She was unable
to establish which of her husband’s employers had been
the cause of his illness. The court allowed her claim, as
it was fair that at least one of his previous employers
should be held responsible. This case allowed a claim,
even though causation could not be established. It is
referred to as the ‘Fairchild exception’.
Topic 1
Negligence test: damage
Question 4
Explain the facts of The Wagon Mound (1961)
and the outcome of the case.
Topic 1
Negligence test: damage
Answer 4
A negligent oil spill from the defendant’s tanker
floated into Sydney Harbour. Sparks from welding
ignited some of the oil and it set fire to the wharf.
The defendant was not liable, as this type of
damage was not foreseeable.
Topic 1
Negligence test: damage
Question 5
Was the type of damage foreseeable in Hughes v
Lord Advocate (1963)?
Topic 1
Negligence test: damage
Answer 5
Yes. The claimant could claim because, even
though the explosion was not foreseeable, the
type of damage (burns) was.
Topic 1
Negligence test: damage
Question 6
What is a novus actus interveniens?
Topic 1
Negligence test: damage
Answer 6
A new intervening act that may break the chain
of causation.
Topic 1
Negligence test: damage
Question 7
Which later case did not follow the decision in
Baker v Willoughby (1970)?
Topic 1
Negligence test: damage
Answer 7
Jobling v Associated Dairies (1982).
Topic 1
Negligence test: damage
Question 8
What is res ipsa loquitur?
Topic 1
Negligence test: damage
Answer 8
‘Res ipsa loquitur’ translates as ‘the facts speak
for themselves’, and it is used in cases where it
cannot be proved exactly what happened, but the
facts show the defendant must have been
negligent.
Topic 1
Negligence test: damage
Question 9
Explain the facts of Mahon v Osborne (1939) and
the outcome of the case.
Topic 1
Negligence test: damage
Answer 9
In Mahon v Osborne (1939), the claimant awoke
from an operation. Someone had failed to remove
cotton wool swabs from her stomach, which
became infected. The hospital was negligent
based on this evidence.
Topic 1
Negligence test: damage
Question 10
In which case did bags of sugar fall from the sky?
Topic 1
Negligence test: damage
Answer 10
Scott v London and St Katherine’s Docks (1865).
Topic 1
Negligence test: nervous shock
Nervous shock
Topic 1
Negligence test: nervous shock
Question 1
Which type of claimant can automatically claim
for nervous shock?
Topic 1
Negligence test: nervous shock
Answer 1
Victims with physical injury and nervous shock
can automatically claim for nervous shock along
with their physical injury. There are no
restrictions placed on this type of claim and the
normal rules of negligence apply.
Topic 1
Negligence test: nervous shock
Question 2
Define the term ‘primary victim’.
Topic 1
Negligence test: nervous shock
Answer 2
Primary victims fear for their own safety and can
claim if they suffer from a medically recognised
psychiatric condition, and if the physical or
psychiatric harm sustained was foreseeable.
Topic 1
Negligence test: nervous shock
Question 3
Explain the facts of Dulieu v White and Sons
(1901) and the outcome of the case.
Topic 1
Negligence test: nervous shock
Answer 3
The claimant was working behind the bar in a
public house when a horse and cart crashed into
the bar. The claimant was not physically injured,
but her claim for nervous shock was successful as
it was foreseeable that harm could occur.
Topic 1
Negligence test: nervous shock
Question 4
What difference between primary and secondary
victims is highlighted in Page v Smith (1995)?
Topic 1
Negligence test: nervous shock
Answer 4
The test for foreseeability for primary victims
requires that it be foreseeable that the victim
would suffer nervous shock. Secondary victims,
however, can claim only if it is foreseeable that a
person of normal fortitude would suffer nervous
shock.
Topic 1
Negligence test: nervous shock
Question 5
What is the rule regarding rescuers who suffer
nervous shock?
Topic 1
Negligence test: nervous shock
Answer 5
The only way for a rescuer to succeed in a claim
for nervous shock would be for him or her to be
in personal danger and, therefore, classed as a
primary victim.
Topic 1
Negligence test: nervous shock
Question 6
Why were the policemen in White and Others v
Chief Constable of South Yorkshire (1999)
unsuccessful in their claim for nervous shock?
Topic 1
Negligence test: nervous shock
Answer 6
The House of Lords did not allow their claim as
none of the policemen at the Hillsborough
disaster was exposed to danger during the
incident.
Topic 1
Negligence test: nervous shock
Question 7
Which case established a test for secondary
victims?
Topic 1
Negligence test: nervous shock
Answer 7
Alcock v Chief Constable of South Yorkshire
(1991).
Topic 1
Negligence test: nervous shock
Question 8
What is the three-part test for secondary victims?
Topic 1
Negligence test: nervous shock
Answer 8
The House of Lords established a test for
secondary victims:
• The nervous shock must have been caused by
the secondary victim hearing or seeing the
accident itself or the immediate aftermath.
• The secondary victim must have been present
at the event or have witnessed it immediately
afterwards.
• The secondary victim must have close ties of
love and affection with the primary victim.
Topic 1
Negligence test: nervous shock
Question 9
Explain the facts of McLoughlin v O’Brian (1982)
and the outcome of the case.
Topic 1
Negligence test: nervous shock
Answer 9
The claimant’s family was involved in a car
accident. She found out about the accident 2
hours after it happened and saw her family at the
hospital. They had not been cleaned up after the
accident and were badly injured. One of the
children had died. The claim for nervous shock
was successful, as the House of Lords believed
that the claimant had witnessed the immediate
aftermath of the accident.
Topic 1
Negligence test: nervous shock
Question 10
How did Deane J define ‘immediate aftermath’ in
Jaensch v Coffey (1984)?
Topic 1
Negligence test: nervous shock
Answer 10
The definition of ‘immediate aftermath’ extends
to seeing loved ones at the hospital, ‘so long as
he remained in the state produced by the
accident up to and including immediate postaccident treatment’.
Topic 1
Negligence test: pure economic loss
Pure economic loss
Topic 1
Negligence test: pure economic loss
Question 1
What is negligent misstatement?
Topic 1
Negligence test: pure economic loss
Answer 1
Negligent misstatement allows liability for advice
that was negligently given and resulted in the
claimant losing money.
Topic 1
Negligence test: pure economic loss
Question 2
What is the three-part test established in Hedley
Byrne and Co. Ltd v Heller and Partners (1964)?
Topic 1
Negligence test: pure economic loss
Answer 2
This test decides the circumstances when a duty
of care will be owed for negligent misstatement:
• There was a special relationship between the
defendant and the claimant.
• The claimant relied on the defendant’s advice.
• It was reasonable to rely on the advice.
Topic 1
Negligence test: pure economic loss
Question 3
What were the facts in Hedley Byrne and Co. Ltd
v Heller and Partners (1964)?
Topic 1
Negligence test: pure economic loss
Answer 3
Hedley Byrne was an advertising agency that was
asked to buy advertising space for Easipower Ltd.
Before it did, it asked its bank (N&P) to check that
Easipower was creditworthy. N&P asked Heller
(Easipower’s bank), which said that Easipower was
‘trustworthy’ up to £100,000 per year.
Hedley Byrne bought the advertising space for
Easipower, but before Easipower paid, it went into
liquidation. Hedley Byrne lost £17,000 and sued
Heller for giving bad advice.
Topic 1
Negligence test: pure economic loss
Question 4
Were the claimants successful in Caparo
Industries PLC v Dickman (1990)?
Topic 1
Negligence test: pure economic loss
Answer 4
The accountants were not liable for the claimant’s
losses, as they did not have actual knowledge of
who would rely on the advice and how they would
rely on the advice.
Topic 1
Negligence test: pure economic loss
Question 5
What is the requirement of a ‘special relationship’
for a claim of negligent misstatement otherwise
known as?
Topic 1
Negligence test: pure economic loss
Answer 5
The ‘special relationship’ is sometimes referred to
as an ‘assumption of responsibility’.
Topic 1
Negligence test: pure economic loss
Question 6
What happened in White v Jones (1995)?
Topic 1
Negligence test: pure economic loss
Answer 6
Two daughters were taken out of their father’s
will following an argument. When they later made
up, the father instructed his solicitor to put them
back in the will and to allocate £9,000 to each
daughter. However, the father died before the
solicitor changed the will.
Topic 1
Negligence test: pure economic loss
Question 7
What is the White v Jones (1995) exception?
Topic 1
Negligence test: pure economic loss
Answer 7
The House of Lords held that a claim for pure
economic loss was allowed for a failure to act. It
relied upon the decision in Ross v Caunters
(1990), where a will was written wrongly and did
not comply with probate laws. Therefore, it
allowed a duty of care using the neighbour
principle in Donoghue v Stevenson (1932),
without the restrictions imposed by the Hedley
Byrne principle.
Topic 1
Negligence test: pure economic loss
Question 8
What part of the claim in Spartan Steel and Alloys
Ltd v Martin and Co. Ltd (1973) was
unsuccessful?
Topic 1
Negligence test: pure economic loss
Answer 8
Future profits that may have been made during
the time it took for the power to be restored and
the vat mended.
Topic 1
Negligence test: pure economic loss
Question 9
What did Lord Denning say to justify the use of
policy decisions in cases of pure economic loss?
Topic 1
Negligence test: pure economic loss
Answer 9
I think the question of recovering economic loss
is one of policy. Whenever the courts draw a line
to mark out the bounds of duty, they do it as a
matter of policy so as to limit the responsibility of
the defendant.
Topic 1
Negligence test: pure economic loss
Question 10
What was established by the House of Lords in
Murphy v Brentwood District Council (1990)?
Topic 1
Negligence test: pure economic loss
Answer 10
A case of economic loss caused by negligent
misstatement requires damage in order to be
successful.