Answering Problem Questions on Negligence Negligence is a fault based tort which also requires that the claimant has suffered damage, loss or injury (so if there is no quantifiable loss no claim is possible). In order for a successful claim to exist 3 things must be shown: . The particular defendant owed the particular claimant a duty of care not to cause them harm in the specific circumstances . The defendant breached the duty of care by falling below the standard of care appropriate to the duty owed . The defendant's breach of duty caused the damage suffered by the claimant and the damage is not too remote a consequence of the breach In answering problem questions: Define each individual element of a negligence claim using appropriate case law and follow a flow chart process to determine whether the tort is made out in any scenario: Did the defendant owe the claimant a duty of care not to cause them harm in the circumstances? There is no all-embracing duty - the duty must relate to specific circumstances. Example: . a duty owed by a manufacturer to users/consumers of his products is too generalised . the specific duty is that owed by a manufacturer to consumers/end users of his products where the goods reach the consumer in the same form they left the manufacturer with no possibility of intermediate inspection/interference Donoghue v Stevenson Although a duty may be broader than this if it can include more circumstances: . in Wilson v Clyde Coal Co & English the non- delegable duty owed by an employer to his employees includes providing safe premises, safe plant and equipment, safe working system and safe work colleagues In rare circumstances there can be liability for a failure to act (rather than a negligent act) where there is a duty to act: . example - where the defendant is in control of the person carrying out the wrong - Home Office v Dorset Yacht Co (the prison warders should have ensured that the young offenders who did the damage were in fact locked up) 3 ways a duty can be shown: Ā· there is a principle from a case that applies to the facts in question e.g. apply Donoghue where an electric kettle that was bought in a sealed opaque container explodes into flames on being plugged in there is a case where although the facts are different Ā· the principle can be extended to include those facts e.g. the duty to examine a patient in Barnett v Chelsea & Kensington HA could reasonably extended to include asking the patient relevant questions . ONLY WHERE THE CIRCUMSTANCES ARE
Did the defendant breach the duty of care by falling below the standard of care appropriate to the duty owed? ENTIRELY NOVEL AND NO PREVIOUS CASE CAN APPLY Robinson v West Yorkshire Police the 3 part test from Caparo v Dickman might be used First we need to know how the standard of care is measured: . In most