Injury and Property

1. DUTY OF CARE

C will owe V a duty of care where there is a foreseeable risk of harm occurring to a neighbour, with a neighbour being someone C ought have considered when doing the act/omission.

The tree-part Caparo test ought only be used in novel scenarios (and so will probably never be used in the exam)

If a duty is ____ (doctor-patient; driver-pedestrian; manufacturer-consumer) do not waste time applying any test. Identify the duty and move on.

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2. BREACH

A breach of duty involves falling below the standard expected of the RP

D will have breached his duty if he did/didn't do something the RP would/wouldn't have done

D will be in breach where the size of the risk of harm (severity and probability) outweighs the cost of taking precautions

Where D is a minor, the standard of care is of the RP of D's age

Professionals are not negligent where they have acted in accordance with a course of conduct supported by a substantial body of opinion within the profession, even if contrary views exist

An amateur undertaking a task will be compared to a reasonably competent amateur, not a professional employed in the field of the task being completed.

Inexperienced/learners will be judged at the standard of a reasonably competent person

D need only take precautions against reasonably foreseeable risks

A lower standard of care is expected in an emergency

Where D knows of a special characteristic of C which makes them vulnerable, D will be expected to take extra care

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3. CAUSATION

D will have caused the damage in fact if, but for D’s negligence, the damage would not have occurred.

D will have caused the damage in law if the general type of harm was a reasonably foreseeable consequence of D’s negligence.

Neither the extent of the damage nor the way in which it occurred need be reasonably foreseeable

A novus actus intervieniens can be either nature, an act of a third party, or C’s own act (though this rarely breaks the chain as CN). These will break the chain if they are not reasonably ______.

Where C has a pre-existing condition which means their injuries would be more severe, then D is liable for these injuries as well.

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4. DAMAGES

1. The aim of damages is to place C in a pre-tort position, not ____ D.

2. C can claim compensation under the Damages Act 1996 for special damages e.g. any lost wages from work, any medical expenses incurred.

3 , C is also entitled to claim compensation for general damages, which include non-pecuniary losses e.g. (loss of amenity, pain and suffering) and pecuniary losses e.g. future loss of earnings and any future medical expenses.

4. It would be in C’s best interest to receive a lump sum payment if C has made/will likely make a full recovery. It would be in C’s best interest to receive a structured settlement in case C’s condition worsens as this would give C the right to apply back to court to raise her compensation level in view of her needs going forward.

5. C also has a duty to take reasonable steps to mitigate her loss e.g. go back to work or find different work if she can no longer work her previous job.