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Summary Negligence Notes
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NegligenceElements of negligence:
1) The defendant needs to owe the claimant a duty of care.
2) That duty must have been breached.
3) The breach caused the claimant a damage.
4) The damage is not too remote a consequence of the breach.
The claimant must satisfy all four elements on the balance of probabilities (more likely than not).
Objective standard of care:
To determine whether the defendant breached his duty of care, he is judged against the standard of
care of the reasonable prudent person.
Latimer v AEC Ltd [1953], an unprecedented downpour of rain caused a factory to flood and led to
the factory’s oil to mix with the water and the appellant slipped. It was held that a reasonably careful
employer would not have shut down the factory.
Pierce v Doncaster MBC [2008], at 14 months old, P was returned to his family where he suffered
indifference, neglect, and periodic violence. The first issue is determining whether the authority
breached its duty of care to P by returning him to his home when there were clear signs of neglect.
The second issue is determining whether the breached caused P to suffer a damage that he would not
have otherwise suffered if he was kept with the authorities. It was held that no reasonable local
authority that properly assessed the case could have reached the decision to permit return. The only
proper course was to seek compulsory powers for P to remain in care if his mother did not agree. The
risk of injury through bad parenting was foreseeable. However, P’s claim failed because it was out of
time.
Knight v Home Office [1989], the primary function of a prison is to detain inmates, so even though it
was required to care for physically and mentally ill prisoners, the prison could not be expected to
provide the same degree of care as hospitals.
Perry v Harris [2008], a child was injured on a bouncy castle. The parents were judged objectively
and it was held that a reasonable parent would not have kept children under constant surveillance, nor
stopped the children from somersaulting, nor prevented children of different sizes from using the
bouncy castle at the same time, even though these things were touched upon in the instructions
supplied. Even if the parents had watched the children, there was nothing they could have done to
prevent the injury. A reasonable parent would foresee a risk of injury but not serious injury.
Therefore, the parents were not in breach of duty.
Bolton v Stone [1951], evidence of a ball hitting out of the ground is very rare, so the probability of
the ball hitting someone in the road was very slight to the point where it was reasonable not to take
precautions against it.
Watt v Hertfordshire CC [1954], to measure due care you must balance the risk against the measures
necessary to eliminate the risk. Firemen serve the purpose of saving lives, so they are prepared to take
risks. In this case, the firemen were not called on to take risks other than those which they normally
take, so the employer is not guilty of any failure of the duty which they owed to firemen.
The more serious the risk injury the more precautions the court expects from the defendant, and the
more dangerous the activity the more unreasonable to run the risk. Factors to help determine whether
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,it was reasonable to run the risk include the social need for the activity, in which case the public
interest outweighs the individual’s claim to negligence. Another factor is the consequence of not
mitigating the risk. A further factor whether the risk is so small that no reasonable person would take
such precautions to avoid it because the cost of the measures necessary to eliminate it are so high.
Daborn v Bath Tramways Motor Co Ltd [1946], the purpose to be served, if sufficiently important,
justifies the assumption of abnormal risk.
Miller v Jackson [1977], public interest requires that young people benefit of outdoor games, and this
outweighs the private interest of neighbouring households who are the victims of the balls therefrom
so as to prevent the grant of an injunction even if the sportsmen are guilty of negligence.
Scout Association v Barnes [2010], the social benefit of an activity is a question of fact, degree, and
judgement. The Court of Appeal held that turning off the lights while scouts were playing a game
unacceptably increased the risk of injuries during the game, and there was no social or educational
value of darkness, only additional excitement. The scouts would not have suffered the same accident
if there had been full illumination.
Paris v Stepney BC [1950], an employer was found liable for negligence when he did not take the
precautions that an ordinary, reasonable, and prudent employer would take. A reasonable employer
would bear in mind the vulnerabilities of the employee. The risk of an employee with partial eyesight
of becoming completely blind was much greater for him than other employees, so the employer was
required to provide him with safety goggles. Relevant factors include the seriousness of the injury, the
likelihood of it being caused, and the consequence of not assuming the risk. In this case, the
consequence of not providing an employee with goggles led to him becoming blind.
Overseas Tankship Ltd v The Miller Steamship Co “The Wagon Mound No.2) [1967], even though
the ignition of oil on water was unlikely, it was foreseeable, and the question was whether running
this risk was justifiable. The Privy Council found that a real risk is one which the reasonable person
would not brush as far-fetched, and the criterion is what a reasonable man would have done in the
circumstances. A reasonable person would not neglect such a risk if action to eliminate it presented no
difficulty, no disadvantage, or expense. Even though the risk in this case was tiny, there was no good
reason for having disregarded it.
Bolton v Stone [1951], A risk is justified if it involved considerable expense to be eliminated, and the
risk was so low that any reasonable person would ignore it. Evidence of a ball hitting out of the
ground is very rare, so the probability of the ball hitting someone in the road was very slight to the
point where it was reasonable not to take precautions against it.
Medical negligence:
Bolam v Friern Hospital Management Company [1957], a person is not guilty of negligence if he has
acted in accordance with a practice accepted as proper by a responsible body of medical men skilled
in that particular art. This makes due care synonymous not with what should be done but with what is
generally done. The problem with the Bolam test is that it has been applied in such a way that the
court’s judgement is replaced with the judgement of the defendant’s medical expert, as long as the
expert is found to be honest and respectable.
Bolitho v City and Hackney Health Authority [1997], just because a doctor leads evidence from a
number of medical experts who are genuinely of opinion that the defendant’s treatment was in
accordance with sound medial practice, it does not mean he gets to escape liability. The court still has
to be satisfied that such opinion is logical. The court may find practitioners’ opinions unreasonable
and irresponsible, although very seldomly so. It is only when the opinion is not logical that the court
will reject it.
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, Hucks v Cole [1993], a number of distinguished doctors gave evidence that they would not have
treated with penicillin and the Court of Appeal still found the defendant negligent because there was
no logical basis for the doctor’s actions. Practitioners’ opinions may be weighty, but they are not
conclusive. There was an obvious risk that should have been guarded against.
Sidaway v Bethlem Royal Hospital [1985], the House of Lords held that advising patients on the risks
of medical procedure was to be determined by considering the steps the reasonable medical
practitioner should take, and a reasonable doctor would respond honestly to questions asked by an
inquisitive patient. Disclosure is treated as a matter of clinical judgement because too much
information can prejudice the attainment of the objective of restoring the patient’s health.
Chester v Afshar [2004], patient autonomy is a well-established and significant value protected by
law, and the defendant should have been warned of the significant risks of injury associated with
surgery. Every adult with a sound mind has the right to decide what may or may not be done with his
or her body, even if the doctor regards such decisions as ill advised. Surgery performed without the
informed consent of the patient is unlawful.
Montgomery v Lanarkshire Health Board [2015], disclosure of information to a patient should be
regarded as an aspect of medical care. Patients are persons holding rights and should no longer be
treated as passive recipients of medical care. Doctors should treat patients as adults capable of
understanding medical treatment and the risks it involves. Doctors have a duty of reasonable care to
ensure that a patient is aware of material risks of injury that are inherent in treatment, and this duty is
not fulfilled by bombarding the patient with technical information which she cannot reasonably be
expected to grasp, let alone be demanded to sign a consent form about them. Doctors can decide what
to disclose by assessing the percentage of the risk, the nature of the risk, the alternatives available and
the risks they involve, and the benefits of the treatment. However, a doctor is entitled to withhold
information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to
the patient’s health. A doctor is also excused from consulting a patient in circumstances of necessity
where the patient requires treatment urgently but he is unconscious or unable to make a decision.
Wilsher v Essex Area Health Authority [1987], there can be no exceptions to inexperienced or newly
qualified medical professionals.
Phillips v William Whiteley [1938], the standard of care is set according to the reasonable person
engaged in the same activity as the defendant. A jeweller who pierced ears was held to the standards
of care and hygiene of a reasonable jeweller not a qualified medical practitioner.
Shakoor v Situ [2000], a practitioner of Chinese traditional medicine was held to the standard of an
orthodox general practitioner where patient safety was concerned.
Sutcliffe v BMI Healthcare Ltd [2007], a nurse decided not to wake a patient up after he has not slept
since the surgery, and as a result, failed to perform vital signs monitoring. The patient could not cough
because he was unconscious due to morphine and as a result gastric contents aspired to his lungs and
he suffered brain damage. The issue was trying to determine whether the nurse had acted negligently.
The Court of Appeal held that the nurse’s decision had a logical basis, as it is reasonable to let the
patient who had little sleep since the operation continue to sleep. It was plain that the nurse had
weighed up the risks and benefits.
Sports:
Wooldridge v Summer [1963], if the game is fast-moving, the participant will have to exercise his
judgement and attempt to exert his skill in the ‘agony of the moment’. So the breach of a duty of care
must be understood in the circumstances and conditions the defendant took the decision to act or not.
A person attending a game takes the risk of any damage caused to him by an act done in the course of
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