Comprehensive Negligence Flowchart, used in a first-class exam., Schemes and Mind Maps of Law of Torts

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Negligence – FLOW CHART

D owed C a duty of care (DoC)

Step one: analogous cases - Caparo as interpreted in Robinson v Chief Police Constable for West Yorkshire [2016] ● Are there any cases analogous to the present facts in which the courts have found a DoC geared towards the particular harm in question? If so, then a DoC is found. Examples: ○ Page v Smith : drivers owe other road-users a DoC to take reasonable steps to prevent physical harm ○ Donoghue v Stevenson : manufacturers of goods owe its potential users a DoC to take reasonable steps to prevent physical harm ○ Hill v Chief Constable of West Yorkshire : police do not owe a DoC to citizens when investigating crimes which could potentially harm them ○ Dorset Yacht Ltd. v Home Office [1970] - authorities holding someone in their custody who threatens to harm X upon escaping, owe X a DoC to prevent harm (on a wider interpretation, a person controlling a dangerous animal or substance owes a duty to prevent in from escaping) ○ Kent v Griffiths - DoC owed by the ambulance service upon accepting the call and confirming dispatch Step two: the Caparo test for determining DoCs where there is no precedent ● If step one fails, apply the test for finding a DoC as laid out in Caparo v Dickeman and interpreted in Robinson v CC for West Yorkshire; likewise, per The Nicholas H [1996], the court will take into account all the relevant circumstances in determining whether a duty can be found

1. Was it reasonably foreseeable that if the D didn’t take care, C may suffer harm of the relevant kind (burden of proof on C)? - test for reasonable foreseeability laid out in The Wagon Mound No.2. [1967]
2. Was the relationship between the D and the C one of proximity or neighborhood (burden on C)?
3. Is it fair, just, and reasonable to impose a DoC on the D (burden on D)? Here, courts will take into account the following factors (McBride and Bagshaw) a. Reasonableness of D’s actions - court will not find a DoC if D acted reasonably b. Actions vs omissions - courts will more readily find a DoC where there has been an action c. Seriousness of the harm - courts will more readily find a DoC where there has been physical or property harm d. Proportionality (fairness) - courts will more readily find a DoC where the liability imposed on D as a result is proportionate to his actions (see The Nicholas H ) e. Individual responsibility - if finding that a duty of care was owed in a particular case might tend to undermine people’s sense of individual responsibility, then that is a factor which will weigh heavily (though not conclusively) against a finding that a duty of care was owed

The D breached his DoC:

Set the standard of care ● The standard of care (SoC) in negligence is objective ( Vanghan v Menlove [1837]) and Nettleship v Weston (per Lord Woolf) - stand ○ Exception : where D has assumed responsibility and made clear that the C cannot expect much of her ○ Confirmed for learner drivers in Nettleship v Weston [1971] (because standard should be objective + insurance can be easily taken out) ○ Exception if D did not have the opportunity that he was more likely to cause the particular harm because they were suffering from a condition - Mansfield v Weetabix [1997] ■ Would not be the case if D already knew about the condition - Roberts v Ramsbottom [1980] ● Considerations the court will take when setting the standard of care:

1. The probability and seriousness of harm - the lower the risk of harm, the less likely it is a court will require the D to take precautions; the more serious the risk of harm, the more likely a court will require the D to take precautions ( Wagon Mound (No 2) , Paris ) a. In such cases the ease of discovering the seriousness of harm will also be relevant ( Paris v Stepney )
2. The cost of taking precautions - the smaller the cost, the more likely it is a court will require D to take precautions( Paris; Bolton; Latimer v AEC (1953)) a. Balance above two requirements with one another
3. The difficulty of the C to appreciate danger and self-protect - the more difficult it is for the C to appreciate danger and self-protect, the more likely to courts will compel the D to take precautions ( Latimer v AEC (1953))
4. Creation of risk and the purpose of the activity - if the activity is socially useful, it will weigh against setting a high SoC ( Bolton ), - Lord Denning’s dicta a. Not applied where D’s conduct produces additional risk - Watson v BBBC
5. Compliance with government regulations - it will generally be enough for the D to say that they did not have to do more for the C because what they did do was in compliance with government regulations 6. The age of the D - Mullin v Richards 7. D’s actions will not breach a DoC if they are in compliance with gov. Regulations unless it was evident that the standard of care was outdated - Baker v Quantum Clothing (2011) Special cases: A. Professionals: it is enough when what the D, a professional, did is consistent with a significant body of opinion within the profession even if that opinion is in the minority ( Bolam v Friern Hospital (1957)) - qualified in Boltiho (the body of medical opinion must be substantial and reasonable) and Montgomery v Lanarkshire Health Board [2015] - duty on the doctor to notify patient of possible options in treatment, where the risk was “material” (a reasonable person in the patient’s position would so regard it) and “would have been so regarded” by the patient (the

doctor was aware or should reasonably been aware that importance would be attached) B. Res ipsa loquitur - cases where the burden of proof shifts on the D, as the breach was the only possible explanation for the harm suffered by C - Scott v London and St Katherine Docks Company [1865]; modern case - Cassidy v Ministry of Health

Advocate [1963] ■ Note: courts will likely read the kind/type of loss widely

No defences apply

Consent ● Three types of consent: ○ (i) consent to specific acts - D will have a complete defence ○ (ii) consent to risky conduct - used when C consents to, or goes along with, some activity which poses a risk to C if D is negligent ( Morris v Murray ) ○ (iii) consent to exclusion of liability - UCTA 1977 and CRA 2015 will apply Illegality ● The defence of illegality applies where C is acting unlawfully when injured as a result of D’s negligence, or C’s unlawful conduct also contributes to the injury caused by D’s negligence ○ Exceptions : ■ There can be no recovery for losses resulting from the direct imposition of a criminal sanction ( Gray v Thames Trains ) ■ There can be no recovery if C’s illegality is sufficiently closely (‘ inextricably ’) connected to C’s harm (Lord Hoffmann in Gray v Thames Trains ) ■ There can be no recovery , which result from C’s unlawful conduct, if this would undermine the policy underlying the law C breached ( Patel v Mirza ) Contributory Negligence: ● The defence of contributory negligence is evoked when C’s own negligence contributed to the harm he suffered, which necessitates both negligence (failure to take reasonable care) and causation from both the D and the C ○ The defence works in accordance to the Law Reform (Contributory Negligence) Act 1945 : ■ S1 : Damages reduced ‘to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’

Remedies

Damages ● To compensate C for the losses that D’s breach caused C to suffer; or ● To compensate C for the aggravated losses D’s breach cause C to suffer; or ● To punish D for violating the rights of others