Today we finished our mini trial of Donoghue v Stevenson.
Donoghue v Stevenson is a very important case. It is the foundation of our modern law of negligence. It introduced the “neighbour test” – see Lord Atkins judgement in your handout.
Negligence = duty of care + breach of that duty + resulting damage (or causation)
The modern three part test was laid down in the Caparo v Dickman. The court must consider:-
1. Whether the consequences of the defendant’s act were reasonably foreseeable. In Kent v Griffiths the harm was reasonably foreseeable; in Bourhill v Young the harm was not reasonably foreseeable.
2. Whether there was sufficient proximate relationship between the the parties – either a legal relationship or physical closeness. In Hill v CC of South Yorkshire – there was not sufficient proximity between the parties. Compare this with Osman v Ferguson – where it was deemed to be a relationship between the parties.
3. Whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty. In Hill it was decided that it would not be just and reasonable in the circumstances to impose a duty on the police. Compare this with Osman. Re-read the handout on the recent Van Colle case. There is no blanket rule on whether the police are under a duty if care – the facts are looked at in each case.
Even if under the Caparo Tests there is a duty of care you still need to show a breach of that duty and that the duty of care has been broken.
It is important that the risk is foreseeable. If the risk of harm is not known then there is no breach. Also specific rules apply if the defendant is a child, a professional or a learner.
For children see: Mullin v Richards
For professionals see: Bolam v Friern Barnet Hospital
For learners see: Nettleship v Weston
The courts will also consider:-
1. The degree of risk involved – see Bolton v Stone
2. The practicability of taking precautions – see Latimer v AEC Ltd
3. The seriousness of harm – see Paris v Stepney BC
4. The social importance of the risky activity – see Watt v Hertfordshire CC
Even if under the Caparo Tests there is a duty of care – still need to show a breach of that duty – the duty of care has been broken;It is important that the risk is foreseeable. If the risk of harm is not known then there is no breach;Finally the breach of duty must cause damage to the victim. It must satisfy the the “but for” test – but for the defendant’s actions the victim would not have suffered any damage – see Barnet v Chelsea & Kensington Hospital
Even if under the Caparo Tests there is a duty of care – still need to show a breach of that duty – the duty of care has been broken;It is important that the risk is foreseeable. If the risk of harm is not known then there is no breach;The Wagon Mound shows us that a person is responsible only for consequences that could reasonably have been anticipated. However, the “thin skull rule” means that a defendant will be responsible for the harm caused to a victim with a weakness or predisposition to a particular injury or illness – see Smith v Leech Brain & Co
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Additional Reading
Please refer to your revision guides and your handouts. Have a look at the books in the resource centre. You should have started your revision by now – a little and often is better than leaving it all to the last minute. Practice answering exam questions – hand them in and I will mark them for you. Take responsibilty for your learning.