Revision:Law Of Negligence

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This is about negligence in the English Legal System only and may not apply to the rest of the UK/World.

The law of negligence in the English Legal System was established in Donoghue Vs Stevenson (1932) by Lord Atkins. It is made up of three parts: Duty of Care, Breach of Duty and Resultant Damage

Duty of Care

Donoghue Vs Stevenson (1932)

In this case Lord Atkin established the "neighbour principle". He said:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

Basically this means that you owe a duty of care to people who are likely to be closely affected by your actions.

Caparo Vs Dickman (1990)

This case added to the neighbour principle by introducing a three stage test to assess if someone owes a duty of care to someone else. This is as follows:

1. Proximity - this means physical closeness as well as a relationship such as mother and child
2. Foreseeability of Harm - this is how foreseeable harm is as a result of you're actions
3. Just and Fair to Impose a Duty of Care - is it fair that a duty of care should be imposed on the defendant

(4.) a forth stage was added which only applies to emergency services such as paramedics and helps prevent them being sued

Breach of a duty of care

Whether a duty has been breached involves asking two questions: what is the standard of care and has the standard been breached? The first question is one of law and the second is one of fact.

How do you determine the standard?

The law by default uses the reasonable man test whereby the standard will be what a reasonable man would or would not have done in the situation.

If the defendant posesses special skills then the standard will be what a person posessing those special skills would or would not have done in the situation (a higher test); see Bolam v Friern Hospital Management Committee.

What would the reasonable man have done in a situation?

There is no absolute formula but the courts have shown a willingness either expressly or impliedly to follow the Hand formula. This was advocated by Learned Hand J who said that 'conduct amounts to negligence depends on 3 factors: the Probability the event would happen, the Gravity of the injury if the event occurred and the Cost of preventing the event.' Applying this it can be seen what a reasonable man would or would not have done ina situation.

How do you know if the standard has been breached?

This is a question of fact. The court looks at the actions of the defendant to see if his actions measure upto the standard. if they do not then he is in breach.

Comments

By TheSmileyOne 18:04, 27 June 2007 (BST) - unfinished.