Topic 1

1. Topic 1 Negligence test

2. Negligence test: duty of care Duty of care

3. Negligence test: duty of care Question 1 Which case established the ‘neighbour principle’?

4. 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.

5. Negligence test: duty of care Question 2 What are the requirements of the ‘neighbour principle’?

6. 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.

7. Negligence test: duty of care Question 3 Name two categories of people who owe an established duty of care.

8. Negligence test: duty of care Answer 3 Established categories include doctor and patient, motorist and other road user etc.

9. Negligence test: duty of care Question 4 What is a ‘policy decision’?

10. 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.

11. Negligence test: duty of care Question 5 What was the policy decision in Hill v Chief Constable of West Yorkshire Police (1988)?

12. 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.

13. Negligence test: duty of care Question 6 Which case created the new three-stage test for negligence?

14. Negligence test: duty of care Answer 6 Caparo Industries PLC v Dickman (1990).

15. Negligence test: duty of care Question 7 What is the three-stage test for negligence?

16. 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?

17. Negligence test: duty of care Question 8 What are the two ways of establishing proximity?

18. 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).

19. Negligence test: duty of care Question 9 Why was no duty of care owed in Maguire v Harland and Wolff PLC (2005)?

20. 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.

21. 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?

22. Negligence test: duty of care Answer 10 Griffiths v Lindsay (1998).

23. Negligence test: breach of duty Breach of duty

24. Negligence test: breach of duty Question 1 What must the defendant have done in order to breach his or her duty of care?

25. 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.

26. Negligence test: breach of duty Question 2 Which test is used to establish a breach of duty?

27. 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.

28. Negligence test: breach of duty Question 3 How will the defendant’s age affect his or her breach of duty?

29. 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.

30. Negligence test: breach of duty Question 4 Which case describes the rules concerning doctors’ breach of duty?

31. Negligence test: breach of duty Answer 4 Bolam v FriernHospitalManagementCommittee (1957).

32. Negligence test: breach of duty Question 5 What standard is required of doctors?

33. 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.

34. Negligence test: breach of duty Question 6 Explain the facts of Bolton v Stone (1951) and the outcome of the case.

35. 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.

36. Negligence test: breach of duty Question 7 Name a case where the defendant had taken reasonable precautions.

37. 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).

38. Negligence test: breach of duty Question 8 Name a case where the defendant had not taken reasonable precautions.

39. Negligence test: breach of duty Answer 8 Hilder v Associated Portland Cement (1961).

40. Negligence test: breach of duty Question 9 In which case did the benefits outweigh the risk?

41. 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.

42. Negligence test: breach of duty Question 10 Explain the facts of Paris v Stepney Borough Council (1951) and the outcome of the case.

43. 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.

44. Negligence test: damage Damage

45. Negligence test: damage Question 1 Using a case example, explain the ‘but for’ test.

46. 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.

47. Negligence test: damage Question 2 What did the case of Wilsher v Essex Area Health Authority (1988) say about cases involving multiple causes?

48. 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.

49. Negligence test: damage Question 3 Explain the ‘Fairchild exception’.

50. 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’.