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A level law, negligence scenario essay plan
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full knowledge and essay plan for a scenario on negligence!
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Negligence Knowledge for a scenario:INTRO: Negligence was defined in [blyth] stating that by failing to do something that the reasonable
person would do or doing something that they would not is negligence. This makes it clear that acts and
omissions can be negligent. It can apply when a person or property is injured or damaged. Its based on
the basic rule that there is a legal duty of care that has been breached and therefore damage has
occurred. Negligence is fault based, so the C is required to prove that D was being negligent.
Duty of Care: To establish whether D owes C a duty of care, there is a 3-part Caparo test, which is
updated from the previous Neighbour principle from [Donoghue and Stephenson]. Firstly, c’s harm must
be reasonably foreseeable to the reasonable person(objective). In [Hayley]- insufficient precautions for a
blind man meant harm was foreseeable. Also is said that where it's not foreseeable it would be unfair to
hold D liable for a fantastic possibility like in [fardon]- dog break car glass and hit C eye. Next their must
be proximity in terms of time, space, activity ect. C and D do not need to know each other but the
connection should be foreseeable due to the activity ect. In [vowles] proximity was between a referee
and a player, and therefore they are proximate. However, if not proximate then cannot have a duty
[Bourhill] unconnected bystander witnesses a crash. Lastly it must be fair just and reasonable, meaning
that it would set a good precedent and would benefit society to refuse the duty creation. [hill]
floodgates would have been opened to the police. However, where society would benefit and would set
a good precedent then the courts will impose a duty. If all of these are passed, then there is a clear duty
owed.
Breach of duty: To see if D has breached their duty, they will be compared to the reasonable competent
at doing the same activity. A breach is failing to do something the reasonable person would and vice
versa – Blyth. According to Bolam, professionals are judged according to the profession as a whole and
look at how others in the industry would act. If D acts in a way that others would then not liable
[bolitho] - shock treatment. Also, learner drivers are judged as qualified ones [Nettleship]. Amateurs are
judged against amateurs [wells]- door handle. Consider the risk factors to see how the reasonable
person would have acted, and whether care is required e.g [Hayley] blind so needed more care. Special
characteristics that make them vulnerable must be considered [paris]-blind in one eye. The size of risk
must be looked at to see if greater precautions are required. [miller] - high frequency of balls hitting so
should have taken precautions. [bolton] low frequency so no extra precautions needed. Precautions
taken must be considered. D is only expected to take reasonable precautions [latimer] -saw dust and
warning signs. Not required to go to extreme lengths. Was there anything that makes the rik justified
[watt] - didn’t fit equipment properly because was attending to a fire emergency, not liable.
Causation and damage: Lastly, c must establish whether D’s breach is what caused the damage (physical,
psychological or property). Factual causation (but for) - must be a direct causal link, would c have
suffered but for the D. [barnett]- patient would have died anyway so not direct cause. Check if any
intervening acts (NOVUS ACTUS INTERVENIENS). Is there an act that breaks causation [lamb]- council
broke water main, squatter moved in. Squatter broke the chain. Legal causation - c must show that the
damage is the type that is reasonably foreseeable. [wagon mound]- The fire was too remote. The extent
of the damage doesn’t matter [bradford] - frostbite.
Egg shell skull rule – take C as D finds them [smith] - precancerous lip hit with molten metal due to
negligence. Cancer became onset and C died. D liable. Take ur C as they are.
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