Negligence: STEPS TO MEMORISE
TYPE 1: Standard personal injury i.e: Any negligence claim where one person’s positive act causes physical harm to another
1) It will be discussed whether X can sue Y in relation to [injury/property damage].
2)Was there a duty of care?
This is a standard situation of physical injury caused by a positive act [insert PQ facts]. Established categories apply: i)Road users owe a duty to other road users and pedestrians (Nettleship v Weston). ii)Individuals generally owe a duty to take reasonable care to avoid foreseeable injury to their ‘neighbours’ (Donoghue v Stevenson). iii)Employers owe a duty to take reasonable steps for employees’ safety (Wilson & Clyde Coal v English). iv)Occupiers owe a duty to lawful visitors, (Donoghue v Stevenson)(Nettleship v Weston), v) manufacturers owe a duty to ultimate consumers(Donoghue v Stevenson)(Nettleship v Weston). Under Robinson v Chief Constable of West Yorkshire, no novel Caparo analysis is required. D therefore owed C a duty to take reasonable care to [insert PQ facts]. The duty reflects the corrective-justice principle that those who create physical risks must restore the loss their fault occasions (Weinrib). Duty is therefore straightforwardly established.
3) DEBATE: Was there a breach?
If YES → The question is whether the defendant fell below the standard of care expected of the reasonable person in the defendant’s position (Blyth v Birmingham Waterworks). This is an objective test (Blyth); D’s good intentions or inexperience are irrelevant (Nettleship v Weston). In assessing breach, the court balances several factors: i) First, Likelihood of harm: was the risk trivial or freakish (because if the risk was rare/ minimal/ freakish / where the chance of harm was infinitesimal like the cricket ball in Bolton v Stone, risk may not require precaution)? ii) Second, the seriousness of potential harm: (because Even if the likelihood were small, greater care of precautions is required where consequences are severe as in Paris v Stepney where blindness in a single eye heightened the seriousness of foreseeable loss and justified extra inexpensive precautions.)? , iii)Third, cost and practicality: would replacing / adding protections be inexpensive (because only reasonable, not perfect, precautions are required to be in place, so an inexpensive cost cannot justify inaction as per Latimer v AEC)?, iv) Fourth, social utility: In Watt v Hertfordshire CC, it was established that if the defendant’s act has high social value (emergency rescue, saving life as in Watts), so the courts will permit more risk if public good outweighs private safety, v)It does not assist D that other businesses in this industry did similar because conformity is relevant but not conclusive (Re Herald of Free Enterprise). The ordinary business owner in this industry must still take reasonable precautions once a danger is known.[apply to PQ facts]. On these facts, with these factors are balanced holistically, Balancing these factors, the risk to C was obvious, the injury potentially serious, and precautions straightforward. Thus, the balance tilts towards D likely breaching the duty of care. One may argue that it might seem harsh to impose the same standard on a small business owner as on a professional. Yet the law’s objectivity, established in Nettleship, reflects a policy choice: public safety and predictability outweigh sympathy for the inexperienced defendant. As Stapleton argues, negligence law treats such cases as part of the “moralised cost of enterprise” — the business’ profits from inviting customers and must bear the cost of preventing foreseeable accidents. This allocation, while not morally perfect, preserves both equality before the law and efficient risk distribution.
If NO → The question is whether the defendant fell below the standard of care expected of the reasonable person in the defendant’s position (Blyth v Birmingham Waterworks). This is an objective test (Blyth); D’s good intentions or inexperience are irrelevant (Nettleship v Weston). In assessing breach, the court balances several factors: i) First, Likelihood of harm: was the risk trivial or freakish (because if the risk was rare/ minimal/ freakish like the cricket ball in Bolton v Stone, risk may not require precaution)? ii) Second, the seriousness of potential harm: (because greater care of inexpensive precautions is required where consequences are serious as in Paris v Stepney where blindness in a single eye heightened the seriousness of foreseeable loss and justified extra precautions.)? , iii)Third, cost and practicality: would replacing / adding protections be inexpensive (because only reasonable, not perfect, precautions are required to be in place, so an inexpensive cost cannot justify inaction as per Latimer v AEC)?, iv) Fourth, social utility: In Watt v Hertfordshire CC, it was established that if the defendant’s act has high social value (emergency rescue, saving life as in Watts), so the courts will permit more risk if public good outweighs private safety, v)is the act a common practise in the industry(because even if it is, that is relevant but not conclusive as in Re Herald of Free Enterprise)? [apply to PQ facts. On these facts, with these factors are balanced holistically, the balance titls towards a breach being unlikely.] Hence, the justification for tolerating danger is absent. The omission therefore falls below the reasonable standard.
The law’s tolerance of some risk reflects pragmatic deterrence limits; negligence is fault-based, not accident insurance.
4) The claimant must prove that the defendant’s breach factually and legally caused the harm. Is Causation satisfied?
If Yes → C must show that D’s breach factually and legally caused the harm. As Stapleton notes, ‘causation’ often conceals normative judgments about scope of responsibility, a trend the Supreme Court made explicit in Khan v Meadows, that causation also limits the scope of liability — D is only responsible for the kind of harm their duty was meant to guard against. Applying the ‘but for’ test (Barnett) for factual causation: but for D’s negligent act, C would not have suffered [injury]. No more unusual intervening act appears to break the chain (Robinson; Corr v IBC Vehicles).
If NO → C must show that D’s breach factually and legally caused the harm.
If SOMEONE ELSE INTERVENED→ For Legal causation, C must show that D’s breach factually and legally caused the harm. If other people intervene: Even if the hospital later treated C negligently, medical negligence is typically treated as foreseeable and does not break the chain (Robinson, Corr type reasoning by analogy)
If THERE ARE 2 POSSIBLE REASONS FOR THE INJURY→ In rare cases of causal uncertainty (e.g. multiple exposures or multiple defendants where it is scientifically impossible to prove which caused the harm), courts have relaxed the “but for” test — liability may arise if each defendant materially increased the risk of injury (Fairchild v Glenhaven Funeral Services; Barker v Corus; Compensation Act 2006, s.3).
If SUICIDE→ For Legal causation, C must show that D’s breach factually and legally caused the harm. Suicide following injury may not break the chain if it is a foreseeable response to D’s breach (Corr).
5) Remoteness - Under The Wagon Mound (No 1), only harm of a foreseeable type is recoverable. Physical injury/property damage of this type is plainly foreseeable; the precise manner or extent need not be (Hughes v Lord Advocate, Jolley v Sutton).
6)Can they rely on the defence of Contrib neg: the claimant did not wear seatbelt, the claimant did not wear helmets, the claimant ignored warning signs, reckless self-endangerment (Froom v Butcher)?
If YES → DEBATE: If C failed to take reasonable care for their own safety, damages are reduced (Froom v Butcher). The reduction must be proportionate to fault, “just and equitable”, though courts have been criticised for arbitrariness in apportionment. Typical reductions include: i) Not wearing a seatbelt – usually 15–25% as per Froom v Butcher. ii) Not wearing a helmet – around 10–15% as per O’Connell v Jackson. iii) Reckless self-endangerment – can be up to 50% or more.
If NO → none were present.
7)Can they rely on the defence of Volenti: rare unless truly clear acceptance (Morris v Murray)?
If YES → DEBATE: This defence can be applied only where the claimant freely and knowingly accepted the risk (Morris v Murray). The claimant must have had a genuine choice which requires voluntary, informed acceptance (Smith v Baker). This is rarely met when C is peer-pressured (Smith v Baker). This avenue is rarely successful as courts set a very high bar because of policy — too generous a use of volenti would leave injured claimants uncompensated even where risk-taking was socially expected. If proven, the claimant recovers nothing.
If NO →DEBATE: the claimant had no real choice/ it’s debatable/ unclear whether the claimant had a choice or not: This avenue is rarely successful as courts set a very high bar because of policy — too generous a use of volenti would leave injured claimants uncompensated even where risk-taking was socially expected.
8)Can they rely on the defence of illegality (Patel v Mirza)?
If YES → DEBATE: A claimant cannot recover damages where doing so would undermine the integrity of the legal system by allowing a person to profit from, or rely upon, their own unlawful conduct. However, the strict “reliance” rule in Tinsley v Milligan has been replaced by the more flexible proportionality approach in Patel v Mirza. The Patel framework reflects a shift from moralistic disapproval to a focus on legal coherence and proportionality. Liability turns not on the claimant’s moral worth but on whether enforcing the claim would make the law contradict itself. This nuanced approach balances fairness to individual litigants with the systemic integrity of the legal order. The court now weighs three policy considerations: i) the purpose of the law that the claimant’s conduct infringed; ii) whether denying recovery would enhance that purpose; and, iii) whether denial would be proportionate, considering the seriousness and centrality of the illegality to the claim and whether refusal would produce a fair and coherent outcome. Where the claimant’s wrongdoing is central to the harm (e.g. two criminals injured while fleeing police), coherence demands that recovery is not allowed.
If NO → DEBATE:Where the claimant’s illegality is incidental or peripheral to the harm (e.g. a minor regulatory breach unconnected to the injury), the proportionality test may favour allowing recovery for the claimant.
9) Conclusion
If NO DEFENCE → If no defence applies, D owed and breached a duty of care, causing foreseeable physical harm to C. Liability is established, and C will recover full damages (subject to reduction for contributory negligence if applicable). This analysis reflects negligence law’s dual logic: formally fault-based yet functionally distributive — a moralised cost of enterprise (Stapleton) balancing corrective justice (Weinrib) with pragmatic risk control.
If ANYTHING ELSE → wing the other conclusions. then say: “This analysis reflects negligence law’s dual logic: formally fault-based yet functionally distributive — a moralised cost of enterprise (Stapleton) balancing corrective justice (Weinrib) with pragmatic risk control.”
when does TYPE 1: Standard personal injury PQs arise?
people bumping into each other,
everyday accidents – e.g. Xerxes crashing into Vera, Adam falling at a station, Yoni driving Winnie.
Negligence: STEPS TO MEMORISE
TYPE 2: Road Traffic
1)It will be discussed whether X can sue Y in relation to injuries sustained in a road traffic accident.
2)Was there a duty of care?
This is a recognised category of physical injury caused by a positive act on the highway. All road users owe a duty to other users and pedestrians to drive with the care and skill of a reasonably competent driver (Nettleship v Weston). The duty applies objectively, regardless of experience or intention. It extends to passengers (Morris v Murray), cyclists, and other vulnerable users (McFarlane v Tayside analogy). As this is an established duty situation, no Caparo analysis is required (Robinson v CC of West Yorkshire). The duty reflects corrective-justice reasoning: those who create road risks must answer for the losses they cause (Weinrib). Duty is therefore straightforwardly established.
3) DEBATE: Was there a breach?
If YES → The question is whether D fell below the objective standard of a reasonable driver (Blyth v Birmingham Waterworks). Under Nettleship v Weston, even a learner driver is judged by the standard of a qualified, careful motorist. The rationale is public protection: victims should not bear the cost of others’ inexperience. In assessing breach, the court balances several risk factors (Blyth): i) First: Likelihood of harm – where the risk of collision or injury was more than minimal, precautions are expected. Conversely, a rare or freakish event (as in Bolton v Stone) may not justify further precautions, ii) Second: Seriousness of potential harm – where injury could be grave, greater care is expected even if the likelihood is low (Paris v Stepney), iii) Third: Practicality of precautions – only reasonable, not perfect, safety is required (Latimer v AEC). Simple actions like slowing down or maintaining distance are low-cost precautions, iv) Fourth: Social utility – unlike emergency contexts (Watt v Hertfordshire CC), driving rarely carries a high public utility, so personal convenience cannot justify increased risk, v) Fifth: Common practice – widespread negligent habits (e.g., speeding at night) do not define reasonableness (Re Herald of Free Enterprise). Balancing these factors, [apply PQ facts -if D was speeding, distracted, or failed to keep a proper lookout], the risk to the claimant was obvious and easily avoidable. Thus, the balance tilts strongly toward a breach of duty. This strict, objective standard has been criticised (Stapleton) for prioritising deterrence and uniformity over fairness — it punishes even inexperienced drivers. Yet, as the courts recognise, predictable standards and road-user safety justify this moral harshness. Negligence here operates as a “moralised cost of enterprise” — a necessary price of shared mobility.
If NO → The question is whether D fell below the objective standard of a reasonable driver (Blyth v Birmingham Waterworks). Under Nettleship v Weston, even a learner driver is judged by the standard of a qualified, careful motorist. The rationale is public protection: victims should not bear the cost of others’ inexperience. In assessing breach, the court balances several risk factors (Blyth): i) First: Likelihood of harm – where the risk of collision or injury was more than minimal, precautions are expected. But if the accident was a freak occurrence, “fantastical or farfetched” that no reasonable driver could have anticipated or prevented. The situation parallels Bolton v Stone, where the chance of harm was so minimal and unforeseeable that no precaution was required [insert PQ facts (e.g: D swerves slightly to avoid a dog that darts into the road; a gust of wind or oil patch causes loss of control as the accident could not have been avoided by reasonable care.)]. Likewise, if D’s vehicle suffered a sudden mechanical failure despite proper maintenance, there would be no breach. A sudden mechanical failure (e.g. brake failure despite proper maintenance) is a different factual scenario, but it’s analogous to Mansfield because both involve unforeseeable loss of control. This is analogous to Mansfield v Weetabix Ltd, where a lorry driver’s crash during an unforeseeable diabetic blackout was non-negligent. The contrast with Roberts v Ramsbottom illustrates the line between fault and misfortune: in Roberts, the driver knew he was unwell and so fell below the standard by driving at all; in Mansfield, the loss of control was entirely unforeseeable, and thus blameless. ii) Second: Seriousness of potential harm – where injury could be grave, greater care is expected even if the likelihood is low (Paris v Stepney), iii) Third: Practicality of precautions – only reasonable, not perfect, safety is required (Latimer v AEC). Courts recognise that “the law does not require perfect foresight under pressure” (Jones v Boyce reasoning adapted). If simple actions like slowing down or maintaining distance are low-cost precautions that were followed, it is unlikely there was a breach. A split-second reaction error does not necessarily amount to breach if the driver acted reasonably in the emergency (e.g: D brakes sharply to avoid a child running out, causing a rear-end collision), iv) Fourth: Social utility –In rare situations where D’s driving occurs for socially valuable reasons (e.g., ambulance driver speeding to save a life), courts allow greater risk tolerance, as in Watt v Hertfordshire CC, v) Fifth: Common practice – If D drove in a way consistent with ordinary competent driving standards and there was no indication of hazard, no breach arises (e.g: D drives within the speed limit, maintains distance, but a tyre unexpectedly bursts due to a latent defect so had no reason to anticipate the event, there would be no breach). Driving is a socially necessary activity, and the courts recognise that some risk is inherent in mobility. Balancing these factors holistically, [apply PQ facts ], the probability of harm was low, precautions were reasonable, and the event unforeseeable. The balance therefore tilts toward no breach of duty. This conclusion reflects negligence law’s policy boundary: liability depends on foreseeable fault, not mere causation. As Stapleton observes, the tort of negligence is “fault-based, not accident insurance.” The law’s tolerance of some unavoidable risk maintains fairness to defendants while preserving realistic deterrence.
4) The claimant must prove that the defendant’s breach factually and legally caused the harm. Is Causation satisfied?
If Yes → C must show that D’s breach factually and legally caused the harm. For Factual causation, Applying the but for test (Barnett v Chelsea Hospital). But for D’s negligent driving, C would not have suffered the injury [insert PQ facts]. No independent intervening act appears to break the chain of causation (Knightley v Johns). [insert PQ facts].
If SOMEONE ELSE INTERVENED→ For Legal causation, C must show that D’s breach factually and legally caused the harm. intervening events rarely arise in road cases unless something truly independent occurs (Knightley v Johns). Even if the hospital later treated C negligently, medical negligence is typically treated as foreseeable and does not break the chain (Robinson, Corr type reasoning by analogy)
If SUICIDE→ For Legal causation, C must show that D’s breach factually and legally caused the harm. Suicide following injury may not break the chain if it is a foreseeable response to D’s breach (Corr).
5) Scope of liability: Following Khan v Meadows, causation also limits responsibility to the type of harm the duty aimed to prevent. A driving duty aims to prevent physical injury and property damage; C’s loss therefore falls within scope.
6) Under The Wagon Mound (No. 1), only harm of a foreseeable type is recoverable. Physical injury and vehicle damage are plainly foreseeable consequences of careless driving. The exact manner or extent of harm need not be foreseen (Hughes v Lord Advocate; Jolley v Sutton).
7)Can they rely on the defence of Contrib neg: the claimant did not wear seatbelt, the claimant did not wear helmets, the claimant ignored warning signs, reckless self-endangerment (Froom v Butcher)?
If YES → DEBATE: If C failed to take reasonable care for their own safety, damages are reduced (Froom v Butcher), under the Law Reform (Contributory Negligence) Act 1945. The reduction must be proportionate to fault, “just and equitable”, though courts have been criticised for arbitrariness in apportionment. This ensures fairness between parties but risks inconsistency, as no objective formula exists for percentage reductions. Typical reductions include: i) Not wearing a seatbelt – usually 15–25% as per Froom v Butcher. ii) Not wearing a helmet – around 10–15% as per O’Connell v Jackson. iii) Reckless self-endangerment can be up to 50% or more.
If NO → none were present.
8)Can they rely on the defence of Volenti: rare in road traffic unless truly clear acceptance (Morris v Murray)?
If YES → DEBATE: This defence can be applied only where the claimant freely and knowingly accepted the risk (Morris v Murray). True consent requires informed and voluntary acceptance, which is rarely met when C is a passenger or peer-pressured (Smith v Baker). This avenue is rarely successful as courts set a very high bar because of policy — too generous a use of volenti would leave injured claimants uncompensated even where risk-taking was socially expected. Courts set a high threshold to avoid unjustly denying recovery to injured victims where risk-taking is socially routine. If proven, this will be a complete defence and the claimant recovers nothing.
If NO →DEBATE: the claimant had no real choice/ it’s debatable/ unclear whether the claimant had a choice or not: This avenue is rarely successful as courts set a very high bar because of policy — too generous a use of volenti would leave injured claimants uncompensated even where risk-taking was socially expected.
9)Can they rely on the defence of illegality (Patel v Mirza)?
If YES → DEBATE: The strict “reliance” rule in Tinsley v Milligan has been replaced by the more flexible proportionality approach in Patel v Mirza. Liability turns not on the claimant’s moral worth but on whether enforcing the claim would make the law contradict itself. This nuanced approach balances fairness to individual litigants with the systemic integrity of the legal order. The court now weighs three policy considerations: i) the purpose of the law that the claimant’s conduct infringed; ii) whether denying recovery would enhance that purpose; and, iii) whether denial would be proportionate, considering the seriousness and centrality of the illegality to the claim and whether refusal would produce a fair and coherent outcome. Where the claimant’s wrongdoing is central to the harm (e.g. two criminals injured while fleeing police), coherence demands that recovery is not allowed.
If NO → DEBATE:Where the claimant’s illegality is incidental or peripheral to the harm (e.g. a minor regulatory breach unconnected to the injury), the proportionality test may favour allowing recovery for the claimant.
10) Conclusion
If NO DEFENCE → If no defence applies, D owed and breached a duty of care, causing foreseeable physical harm and property damage to C. Liability is established, and C will recover full damages (subject to reduction for contributory negligence if applicable). This analysis outcome reflects negligence law’s dual logic: formally fault-based yet practically strict. In the road context, uniform standards promote public safety and deterrence — a “moralised cost of enterprise” (Stapleton) that balances corrective justice (Weinrib) with pragmatic risk regulation..
If ANYTHING ELSE → wing the other conclusions. then say: “This analysis outcome reflects negligence law’s dual logic: formally fault-based yet practically strict. In the road context, uniform standards promote public safety and deterrence — a “moralised cost of enterprise” (Stapleton) that balances corrective justice (Weinrib) with pragmatic risk regulation.”
when does TYPE 1: road traffic PQs arise?
Car crashes,
careless actions on the road,
Negligence: STEPS TO MEMORISE
TYPE 2: Medical negligence for Medical Diagnosis or Treatment/ surgery etc
1) It will be discussed whether C (the claimant/patient) can sue the defendant D (the doctor/hospital) in negligence for [misdiagnosis / surgical error / treatment failure].
2)Was there a duty of care?
Doctors owe a well-established duty of care to their patients (Cassidy); hospitals are vicariously liable (Wilsher). Duty is therefore straightforwardly established and no Caparo analysis is required (Robinson v CC West Yorkshire).
3) DEBATE: Was there a breach?
If YES → Under Bolam (factual test), a doctor is not negligent if acting in accordance with a responsible body of opinion. Here, [Insert PQ facts e.g. Misreading an X-ray, failing to order obvious tests, ignoring known risks] is a basic medical error, not a defensible professional judgment, and no responsible body would condone it. Under Bolitho, even if a body of opinion exists, it must withstand logical analysis. A basic error cannot meet this threshold. D therefore breached his duty. go to step 4.
If NO → Under Bolam (factual test), a doctor is not negligent if acting in accordance with a responsible body of opinion. Here, [Insert PQ facts e.g: a decision between two accepted treatment approaches, surgery vs conservative therapy, will not be negligent merely because one failed as per Maynard] is a defensible professional judgment not basic error. It is also one that a responsible body would condone. Applying Bolitho, the opinion is logically defensible. Thus C has no claim. THE END. skip to 10.
4) The claimant must prove that the defendant’s breach factually and legally caused the harm. Is Causation satisfied?
If Yes → C must show that but for D’s negligence, [insert PQ injury facts] would not have happened (Barnett). There is no intervening cause (Rahman). Go to step 5.
If THERE IS ANOTHER DOCTOR CAUSES HARM → If a later doctor also acts negligently, both are jointly liable (Rahman) and the chain is not broken. Go to step 5.
If THERE IS ANOTHER POTENTIAL CAUSE FOR C’s INJURY AND WE ARE UNCERTAIN WHICH ONE ACTUALLY CAUSED IT/ EVEN IF THE DOCTOR MATERIALLY CAUSED IT BUT SOMETHING ELSE CAUSED IT ASWELL→ C must prove on a balance of probabilities that but for D’s negligence, [insert PQ injury facts] would not have happened (Barnett). As the PQ states “it cannot be determined whether earlier treatment would have prevented the injury” OR “multiple potential causes exist”(Wilsher), causation fails under Hotson v East Berkshire and Gregg v Scott. Loss of chance is not recoverable in medical negligence (Hotson; Gregg). C is likely unable to rely on the Fairchild exception as its application remains limited to mesothelioma (cancer). Had causation been proved, physical injury from misdiagnosis is clearly foreseeable (Wagon Mound)(Hughes v Lord Advocate; Jolley v Sutton). However, in this PQ, duty and breach are established, but causation fails. Claim therefore fails. THE END.
5) Remoteness: Physical injury from [insert PQ facts] is clearly foreseeable (Wagon Mound). Where the injury is the very risk the defendant should have prevented (Hughes v Lord Advocate; Jolley v Sutton), remoteness is rarely contentious.
6) Can D rely on the defence of Contrib neg: if the claimant C failed to follow medical advice or post-operative instructions (analogous to Froom v Butcher)?
If YES → DEBATE: D may be able to raise the defence of Contributory Negligence under the Law Reform (Contributory Negligence) Act 1945 as C acted recklessly (e.g. ignored recovery restrictions, patient clearly disregards medical instructions or fails to attend follow-up care, failed to follow medical advice, or post-operative instructions), which is analogous to Froom v Butcher). Courts are cautious because patients rely on doctors (Bolam analogy; Chester reasoning). The reduction must be “just and equitable”. The extent of reduction is discretionary and typically small.
If NO → If none → move on.
7)Can they rely on the defence of Volenti: Rare in medical contexts?
If YES → DEBATE: Volenti requires full, informed consent to the specific risk(Morris v Murray)(Smith v Baker).
If NO →DEBATE: Volenti requires full, informed consent to the specific risk(Morris v Murray)(Smith v Baker). Patients consent to treatment, not to negligence (Chatterson v Gerson; Nettleship analogy). A patient cannot have “consented” to a risk they were not told about (Montgomery).
If C SIGNED A FORM→ After Montgomery, true informed consent is central — mere form-signing is insufficient.8)Can they rely on the defence of illegality (Patel v Mirza)?
If YES → DEBATE: Applies only in extreme situations (e.g. illegal cosmetic procedures). Patel v Mirza proportionality test applies:i) Purpose of the law infringed, ii)Does denying recovery further that purpose?, iii) Is denial proportionate?. C claim is unroverable.
If NO → DEBATE:Where the claimant’s illegality is incidental or peripheral to the harm (e.g. a minor regulatory breach unconnected to the injury), the proportionality test may favour allowing recovery for the claimant.
9) Conclusion
If BREACH→ As duty (Cassidy; Wilsher), breach (Bolam/Bolitho), causation (Barnett, or Rahman), remoteness are established, D is liable for all foreseeable physical harm (subject to contributory negligence).
If BREACH BUT FAILS CAUSATION →If causation fails under Hotson/Gregg/Wilsher, claim fails even if breach exists.
when to use TYPE 2: Medical negligence for Medical Diagnosis or Treatment/ surgery etc template PQ?
Use this template when the problem question is about how the doctor carried out the diagnosis, treatment, or surgery
For example, whether they used proper skill, judgment, or care in performing their medical duties. Here, the alleged negligence is technical or procedural — misdiagnosis, incorrect treatment, surgical errors, failure to monitor, etc. It’s about the doctor’s actions or technique, not what they told the patient.
use Bolam/Bolitho
Negligence: STEPS TO MEMORISE
TYPE 3: Medical negligence for Advice & Consent (Patient Autonomy)
1) It will be discussed whether C (patient) can sue D (doctor/hospital/pharamcist) in negligence for [failure to warn / lack of consent / advice leading to harm].
2)Was there a duty of care?
Doctors and other healthcare professionals (including pharmacists) owe a well-established duty of care to their patients (Cassidy). Hospitals owe a duty through their employees (Wilsher v Essex AHA). This is an established duty category, so no Caparo analysis is required (Robinson). Duty is therefore straightforwardly established.
3) DEBATE: Was there a breach?
If YES → Montgomery replaces Bolam, requiring doctors to warn of material risks and reasonable alternatives. A risk is material if i) a reasonable patient would attach significance to it, or ii) this patient would. This marks a shift from paternalism (Sidaway) to patient autonomy. The PQ facts suggest D failed to disclose the material risks of [insert PQ facts (e.g. paralysis, infertility, stroke, religion, pregnancy risk, alternative medicine is available)]. Therefore D breached the duty. Move to causation.
If NO BECAUSE THE RISK WAS TRIVIAL→ Montgomery replaces Bolam, requiring doctors to warn of material risks and reasonable alternatives. A risk is material if i) a reasonable patient would attach significance to it, or ii) this patient would. This marks a shift from paternalism (Sidaway) to patient autonomy. In this PQ, D failed to disclose [insert PQ risk (e.g. temporary nausea, mild bruising, risk of headache, minor infection, dry mouth, )]. This is not a material risk because [insert]. Therefore D did not breach the duty to C. C has no claim. THE END.
If NO BECAUSE THEY DID DISCLOSE → Montgomery replaces Bolam, requiring doctors to warn of material risks and reasonable alternatives. A risk is material if i) a reasonable patient would attach significance to it, or ii) this patient would. This marks a shift from paternalism (Sidaway) to patient autonomy. In this PQ, D did disclose the risks of [insert PQ facts (e.g. paralysis, infertility)]. Therefore D did not breach the duty to C. C has no claim. THE END.
4) The claimant must prove that the defendant’s breach factually caused the harm?
If YES → But for D’s [failure to warn / lack of consent / advice leading to harm], C have avoided or delayed the procedure and therefore avoided the harm (Barnett). Normal causation is satisfied. Go to step 5.
If NO BUT CHESTER APPLIES → If But for test fails, Chester applies because i) small but serious risk (a rare risk with grave consequences), ii) C would have postponed, AND iii) the very risk materialised. Therefore causation is satisfied despite but-for failure. Go to step 5.
If NO BECAUSE C WOULD HAVE WENT FORWARD WITH THE TREATMENT ANYWAY→ C would have undergone treatment even if warned (Montgomery; Duce). Therefore, but-for fails. Chester is not engaged because the decision would not have changed. C’s claim fails for lack of causation. THE END.
If NO BECAUSE THE RISK WAS UNAVOIDABLE → Even if C would have postponed, the harm was inevitable / inherent. Chester is not engaged where postponement cannot alter outcome. C’s claim fails for lack of causation. THE END.
5) Remoteness: Is it a physical injury?
If YES → Under Wagon Mound (No 1), only foreseeable types of harm are recoverable. Physical injury resulting from undisclosed medical risk is foreseeable. If the very harm was the undisclosed risk, remoteness is plainly satisfied (Hughes; Jolley).
If NO → As C suffers [insert PQ facts], not a physical injury resulting from undisclosed medical risk, the injury C suffers is not foreseeable, and thus unrecoverable (Wagon Mound No 1)(Hughes; Jolley).
6) Can D rely on the defence of Contrib neg: if the claimant C failed to follow medical advice or post-operative instructions (analogous to Froom v Butcher)?
If YES → DEBATE: D may be able to raise the defence of Contributory Negligence under the Law Reform (Contributory Negligence) Act 1945 as C acted recklessly (e.g. ignored recovery restrictions, patient clearly disregards medical instructions or fails to attend follow-up care, failed to follow medical advice, or post-operative instructions), which is analogous to Froom v Butcher). The reduction must be “just and equitable”. The extent of reduction is discretionary and typically small.
If NO → If none → move on.
8)Can they rely on the defence of Volenti: Rare in medical contexts?
If YES → DEBATE: Volenti requires full, informed consent to the specific risk(Morris v Murray)(Smith v Baker). After Montgomery, true informed consent is central and mere form-signing is insufficient.
If NO →DEBATE: Volenti requires full, informed consent to the specific risk(Morris v Murray)(Smith v Baker). Patients consent to treatment, not to negligence (Chatterson v Gerson; Nettleship analogy). A patient cannot have “consented” to a risk they were not told about (Montgomery).
If C SIGNED A FORM→ After Montgomery, true informed consent is central — mere form-signing is insufficient.9)Can they rely on the defence of illegality (Patel v Mirza)?
If YES → DEBATE: Applies only in extreme situations (e.g. illegal cosmetic procedures). Patel v Mirza proportionality test applies:i) Purpose of the law infringed, ii)Does denying recovery further that purpose?, iii) Is denial proportionate?. C claim is unroverable.
If NO → DEBATE:Where the claimant’s illegality is incidental or peripheral to the harm (e.g. a minor regulatory breach unconnected to the injury), the proportionality test may favour allowing recovery for the claimant.
10) Conclusion
If NO DEFENCE + BREACH → D owed and breached a duty of care under Montgomery, causing foreseeable injury to C. Liability is established and C recovers full damages. This reflects the modern shift from Bolam’s deference to expertise toward Montgomery’s protection of patient autonomy and informed choice.
If BREACH → As duty, breach (Montgomery), and causation (or Chester) are satisfied, D is liable for all foreseeable physical harm ( subject to reduction in contributory negligence).
when to use TYPE 3: Medical negligence for Advice & Consent (Patient Autonomy) PQ template?
Use this template when the problem question is about what the doctor told (or failed to tell) the patient before treatment. For example, if the PQ asks whether the patient was properly warned or informed about the risks, alternatives, or getting the patient’s permission (consent).
use Montgomery
Negligence: STEPS TO MEMORISE
TYPE 4: Omissions & public authorities (police, social services, hospitals)
1) It will be discussed whether X can sue Y (a public authority / emergency service / local body) in negligence for [failure to act / failure to protect / failure to prevent harm].
2)Was there a duty of care?
Ordinarily, negligence law does not impose liability for pure omissions — failing to act to prevent harm caused by others or external events (Smith v Littlewoods). As Lord Hoffmann explained in Stovin v Wise, there is “no general duty to rescue,” as this would impose an excessive and indeterminate burden on individuals and public bodies. No Caparo analysis is needed (Robinson v CC West Yorkshire). However, liability for omissions may arise under three limited exceptions: i) a positive act by D creating danger OR ii) a special relationship imposing a duty to act OR, iii) an assumption of responsibility by D.
2a) Is the defendant Private individual/company, a Public authority/ emergency service/council OR is it ambiguous?
If PRIVATE INDIVIDUAL/COMPANY→ apply 2a(i) to 2a(iii) only. then skip to Step 3.
If PUBLIC AUTHORITY/EMERGENCY SERVICE/COUNCIL→ apply 2a(i) to 2a(iii) AND 2b(i) + 2b(ii), then move on to Step 3.
If AMBIGUOUS→ apply 2a(i) to 2a(iii), BUT BRIEFLY EXPLORE 2b(i) + 2b(ii), then move on to Step 3.
2a)(i) a positive act by D creating danger:
If the defendant made matters worse (rather than merely failing to prevent harm), a duty can arise.
If YES → If the defendant made matters worse (rather than merely failing to prevent harm), a duty can arise. (e.g: in Capital & Counties plc v Hampshire CC, fire officer turned off sprinklers, worsening the blaze)(e.g:in Rigby,police fired gas into a building, causing a fire)(e.g: in Kent v Griffiths, the ambulance accepted a 999 call and said an ambulance was coming, causing C to rely on that assurance and the court found that this was equivalent to a positive undertaking)[INSERT PQ FACTS].
If NO → The defendant did not make matters worse. If D merely failed to act (e.g. not arriving in time), this is a pure omission and no duty arises (Stovin v Wise; Michael v CC South Wales).(e.g: failing to arrive in time as per Capital & Counties)(e.g: Council failed to fix a dangerous road junction despite knowing of the risk, as per Stovin v Wise)(e.g: Police failed to respond quickly to a 999 call, as per Michael v Chief Constable of South Wales).
2a)(ii)Was there a special relationship imposing a duty to act?
If YES → D and C are in a recognised dependency relationship (e.g. employer–employee, doctor–patient). [Apply PQ facts – is there proximity akin to those categories?]
If NO → D and C are not in a recognised dependency relationship (e.g. employer–employee, doctor–patient). Public authorities are rarely in such relationships with individuals (Hill v CC West Yorkshire). [Apply PQ facts – is not proximity akin to any those categories?]
2a)(iii)Was there an assumption of responsibility by D?
If YES → A duty may arise where D undertakes to protect or assist C specifically, not the general public, and C reasonably relies on the assurance of D (Kent v Griffiths). [Apply PQ facts]
If NO → If the assumption of responsibility was not to C specifically, there will be no breach as no duty arises from general emergency-service to the general public (Alexandrou v Oxford; Capital & Counties). Public authorities owe no general duty to the public at large, but may owe one to an individual if they assume responsibility (Michael; CN v Poole BC). [Apply PQ facts]
2b) Public Authorities do not have a “core immunity” as described in Hill v Chief Constable of West Yorkshire, but instead also have the general rule of omission (Michael v Chief Constable of South Wales). Thus, in Robinson v Chief Constable of West Yorkshire, the court held that public authorities (like councils, police, or ambulance services) can be liable for negligence in the same way as private individuals, but only where the case fits within an established duty category, i.e: creating a danger, OR assuming responsibility (CN v Poole BC). The question now becomes:
2b)(i)was there a positive act done that would render the authority be liable, just like any private person (A fire officer turns off sprinklers, worsening a fire as in Capital & Counties)?
If YES → the public body will be held to owe C a duty of care. go to step 3.
If NO → go to 2b(ii)
2b)(ii)did the public authority make a high-level choice about how to allocate resources (e.g. where to put money, staff, or equipment)?
If YES → Courts don’t second-guess these because they involve political and financial judgment, not legal negligence. (Stovin v Wise)(Gorringe v Calderdale) (X (Minors) v Bedfordshire CC). public body is does not owe the claimant a duty of care. end.
If NO → the public body will be held to have a duty of care. go to step 3.
3) If a duty is established DEBATE: Was there a breach?
If YES → The question is whether the defendant fell below the standard of care expected of the reasonable person in the defendant’s position (Blyth v Birmingham Waterworks). This is an objective test (Blyth); D’s good intentions or inexperience are irrelevant (Nettleship v Weston). In assessing breach, the court balances several factors: i) First, Likelihood of harm: was the risk trivial or freakish (because if the risk was rare/ minimal/ freakish / where the chance of harm was infinitesimal like the cricket ball in Bolton v Stone, risk may not require precaution)? ii) Second, the seriousness of potential harm: (because Even if the likelihood were small, greater care of precautions is required where consequences are severe as in Paris v Stepney where blindness in a single eye heightened the seriousness of foreseeable loss and justified extra inexpensive precautions.)? , iii)Third, cost and practicality: would replacing / adding protections be inexpensive (because only reasonable, not perfect, precautions are required to be in place, so an inexpensive cost cannot justify inaction as per Latimer v AEC)?, iv) Fourth, social utility: In Watt v Hertfordshire CC, it was established that if the defendant’s act has high social value (emergency rescue, saving life as in Watts), so the courts will permit more risk if public good outweighs private safety, v)It does not assist D that other businesses in this industry did similar because conformity is relevant but not conclusive (Re Herald of Free Enterprise). The ordinary business owner in this industry must still take reasonable precautions once a danger is known.[apply to PQ facts]. (BTW: For public bodies but courts also consider resource constraints and avoid second-guessing policy decisions (Stovin; Gorringe) but this is not applicable in cases of private individuals). On these facts, with these factors are balanced holistically, Balancing these factors, the risk to C was obvious, the injury potentially serious, and precautions straightforward. Thus, the balance tilts towards D likely breaching the duty of care. One may argue that it might seem harsh to impose the same standard on a small business owner as on a professional. Yet the law’s objectivity, established in Nettleship, reflects a policy choice: public safety and predictability outweigh sympathy for the inexperienced defendant. As Stapleton argues, negligence law treats such cases as part of the “moralised cost of enterprise” — the business’ profits from inviting customers and must bear the cost of preventing foreseeable accidents. This allocation, while not morally perfect, preserves both equality before the law and efficient risk distribution.
If NO → The question is whether the defendant fell below the standard of care expected of the reasonable person in the defendant’s position (Blyth v Birmingham Waterworks). This is an objective test (Blyth); D’s good intentions or inexperience are irrelevant (Nettleship v Weston). In assessing breach, the court balances several factors: i) First, Likelihood of harm: was the risk trivial or freakish (because if the risk was rare/ minimal/ freakish like the cricket ball in Bolton v Stone, risk may not require precaution)? ii) Second, the seriousness of potential harm: (because greater care of inexpensive precautions is required where consequences are serious as in Paris v Stepney where blindness in a single eye heightened the seriousness of foreseeable loss and justified extra precautions.)? , iii)Third, cost and practicality: would replacing / adding protections be inexpensive (because only reasonable, not perfect, precautions are required to be in place, so an inexpensive cost cannot justify inaction as per Latimer v AEC)?, iv) Fourth, social utility: In Watt v Hertfordshire CC, it was established that if the defendant’s act has high social value (emergency rescue, saving life as in Watts), so the courts will permit more risk if public good outweighs private safety, v)is the act a common practise in the industry(because even if it is, that is relevant but not conclusive as in Re Herald of Free Enterprise)? [apply to PQ facts. On these facts, with these factors are balanced holistically, the balance titls towards a breach being unlikely.] Hence, the justification for tolerating danger is absent. The omission therefore falls below the reasonable standard.
The law’s tolerance of some risk reflects pragmatic deterrence limits; negligence is fault-based, not accident insurance.
4) Factual Causation:
Apply the “but for” test (Barnett v Chelsea Hospital). The claimant must show that, but for D’s omission, the harm would not have occurred. In omission cases, this is often tricky: C must prove the act D failed to perform would probably have prevented the harm (e.g. if the ambulance had arrived on time in Kent). If it is uncertain whether D’s failure caused the loss, causation may fail (Wilsher v Essex AHA).
5) Legal Causation:
Even if factual causation is satisfied, the chain of causation can be broken by an independent, unforeseeable act.
Courts are cautious about this in omission cases — since D hasn’t acted at all, it’s hard to say someone else “intervened.” Still, there are three key situations where legal causation can break: i)Intervening acts of third parties, ii) Intervening acts of the claimant, iii)Natural events
If i)→ If the immediate harm was caused by a third party’s independent act, D is not liable unless their duty included protecting C from that kind of act (Smith v Littlewoods; Michael v Chief Constable of South Wales). For example: If the police fail to prevent an assault, they’re not liable for the assailant’s independent crime (Hill; Michael). But if D assumed responsibility to protect C from that very risk, the chain remains intact (Reeves v Commissioner of Police).
If ii)→ If C’s own voluntary act causes the harm, this may break the chain unless the act was a foreseeable reaction to D’s negligence. If the act is impulsive but foreseeable, the chain continues (Corr v IBC Vehicles). If it’s wholly unreasonable or reckless, the chain breaks (McKew v Holland).
If iii)→ Only break the chain if the natural event is extraordinary and unforeseeable (The Oropesa).
5) Following Khan v Meadows, D is only liable for the type of harm their duty sought to prevent. So even if causation-in-fact is satisfied, if the harm was outside the risk the duty was meant to address, it’s not recoverable.
6) Remoteness: Under The Wagon Mound (No 1), only foreseeable types of harm are recoverable. In most omission cases, foreseeability is clear — the issue lies in the existence of duty rather than remoteness.
7)Can they rely on the defence of Contrib neg: the claimant did not wear seatbelt, the claimant did not wear helmets, the claimant ignored warning signs, reckless self-endangerment (Froom v Butcher)?
If YES → DEBATE: If C’s conduct contributed to their loss (e.g. ignored warnings, acted recklessly), damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 (Froom v Butcher). The reduction must be proportionate to fault, “just and equitable”, though courts have been criticised for arbitrariness in apportionment.
If NO → none were present.
7)Can they rely on the defence of Volenti: rare unless truly clear acceptance (Morris v Murray)?
If YES → DEBATE: This defence can be applied only where the claimant freely and knowingly accepted the risk (Morris v Murray). The claimant must have had a genuine choice which requires voluntary, informed acceptance (Smith v Baker). This is rarely met when C is peer-pressured (Smith v Baker). This avenue is rarely successful as courts set a very high bar because of policy — too generous a use of volenti would leave injured claimants uncompensated even where risk-taking was socially expected. If proven, the claimant recovers nothing.
If NO →DEBATE: the claimant had no real choice/ it’s debatable/ unclear whether the claimant had a choice or not: This avenue is rarely successful as courts set a very high bar because of policy — too generous a use of volenti would leave injured claimants uncompensated even where risk-taking was socially expected.
8)Can they rely on the defence of illegality (Patel v Mirza)?
If YES → DEBATE: A claimant cannot recover damages where doing so would undermine the integrity of the legal system by allowing a person to profit from, or rely upon, their own unlawful conduct. However, the strict “reliance” rule in Tinsley v Milligan has been replaced by the more flexible proportionality approach in Patel v Mirza. The Patel framework reflects a shift from moralistic disapproval to a focus on legal coherence and proportionality. Liability turns not on the claimant’s moral worth but on whether enforcing the claim would make the law contradict itself. This nuanced approach balances fairness to individual litigants with the systemic integrity of the legal order. The court now weighs three policy considerations: i) the purpose of the law that the claimant’s conduct infringed; ii) whether denying recovery would enhance that purpose; and, iii) whether denial would be proportionate, considering the seriousness and centrality of the illegality to the claim and whether refusal would produce a fair and coherent outcome. Where the claimant’s wrongdoing is central to the harm (e.g. two criminals injured while fleeing police), coherence demands that recovery is not allowed.
If NO → DEBATE:Where the claimant’s illegality is incidental or peripheral to the harm (e.g. a minor regulatory breach unconnected to the injury), the proportionality test may favour allowing recovery for the claimant.
9) Conclusion
If NO DEFENCE → If no defence applies, liability will depend on whether the public body created a danger or assumed responsibility for the claimant’s safety. Overall, this analysis reflects negligence law’s cautious balance between corrective justice and public-policy restraint: accountability where reliance or danger is created, but restraint where imposing a general duty would over-deter socially useful discretion.
If ANYTHING ELSE → wing the other conclusions. then add “Overall, this analysis reflects negligence law’s cautious balance between corrective justice and public-policy restraint: accountability where reliance or danger is created, but restraint where imposing a general duty would over-deter socially useful discretion.”
when to use TYPE 4: Omissions & public authorities (police, social services, hospitals) template in a PQ?
It’s about what D didn’t do — not what D did badly. Use when the PQ involves either:
a) A failure to act, rescue, or prevent harm (e.g. police fail to arrest, council fails to fix a hazard, social services fail to protect a child).
OR
b) where the defendant is a public body (e.g. police, ambulance, local authority, school) and you must discuss policy limits on negligence.
e.g: “Failed to prevent…”, “Did not protect…”, “Didn’t attend…”, “didn’t warn…”, “public authority responsibility…”, “emergency services failed to respond…”
Negligence: STEPS TO MEMORISE
TYPE 5: Psychiatric injury (primary & secondary victims)
1) It will be discussed whether X can sue Y in negligence for psychiatric harm (nervous shock) arising from [describe event — e.g. a car crash, explosion, workplace accident, etc.]. Psychiatric harm is recoverable only where it constitutes a recognised psychiatric illness, such as PTSD or pathological depression, rather than ordinary sorrow or distress (Hinz v Berry; Reilly v Merseyside RHA). Because of the evidential and policy challenges surrounding such claims — particularly the risk of unlimited liability — the courts have developed restrictive “control mechanisms” to define when a duty arises (Alcock v Chief Constable of South Yorkshire).
2a) Was the claimant a primary victim?
If YES → DEBATE: A primary victim is directly involved in the traumatic event — either physically injured or within the zone of danger (Page v Smith). In Page v Smith, psychiatric injury was recoverable if physical injury was foreseeable — even if psychiatric harm itself was not. The key test: Was C personally exposed to physical danger, or reasonably believed themselves to be? (Dulieu v White; McFarlane v EE Caledonia).
If RESCUER → Primary victims also include those physically injured or in immediate peril (e.g. car driver in crash), as well as rescuers only if the rescuer themselves was in physical danger(Chadwick v British Rail)(White (Frost)). If rescuer is not in physical danger themselves then they are a secondary victim so go to 2b.
If NO → go to 2b.
2b) Was the claimant a secondary victim?
If YES → DEBATE: A secondary victim suffers psychiatric harm through witnessing injury to others, but is not personally endangered (Alcock). They must satisfy three control mechanisms (from Alcock and refined in McLoughlin v O’Brian): i) Close tie of love and affection with the primary victim (Alcock); close tie of love and affection is presumed for spouse, parent, child but it must be proven for friends, colleagues, and other relationships, ii) Proximity in time and space to the event, must be present at the accident or its immediate aftermath, as per McLoughlin where the claimant arrived at the hospital about two hours. Taylor v A Novo however limits aftermath to, stating that the “immediate aftermath” is confined to the aftermath of the original accident, later consequences of it, such as later medical deterioration or death is too remote. iii) Direct perception by own unaided senses (Alcock): Must see or hear the shocking event, not learn via TV or third-hand report. iv)There is no recovery if the shock was gradual or part of medical process, as it is not a “sudden horrific event” (Liverpool Women’s Hospital NHS Foundation Trust v Ronayne)(Sion v Hampstead HA). In contrast, A 36-hour event may still count if perceived as one horrifying episode, (North Glamorgan NHS v Walters). Together, these restrict recovery to those closely connected and directly exposed to a sudden shocking event. The restrictive approach reflects policy concerns: floodgates, evidential uncertainty, and the potential chilling effect on socially useful behaviour. As Stapleton argues, psychiatric harm liability operates as a “bounded corrective justice” — providing redress only where relational and perceptual proximity make responsibility fair.
If NO → see 2c.
2c) Was the claimant a bystander?
If YES → There is no general duty to avoid causing psychiatric harm to mere bystanders (Alcock; McFarlane v EE Caledonia). To succeed, a bystander must fall within one of the recognised categories: primary victim or secondary victim. X the bystander was not personally endangered by D’s negligence, and therefore cannot qualify as a primary victim under Page v Smith, which requires the claimant to be within the range of foreseeable physical injury. Accordingly, X the bystander can only recover, if at all, as a secondary victim under Alcock. However, as an unaffiliated bystander, X fails to satisfy the Alcock control mechanisms—particularly the requirement of a close tie of love and affection. Following McFarlane v EE Caledonia, mere witnesses to tragedy by a bystander generally fail unless confronted with an exceptionally horrifying spectacle. Lord Ackner did not define it precisely, but the phrase “exceptionally horrifying spectacle” was meant to capture rare, extreme events and the courts have never actually found one that passes this threshold. X will therefore likely not be found to be a secondary victim.
3) DEBATE: Was Psychiatric Harm Reasonably Foreseeable?
If PRIMARY VICTIM → It is sufficient that some personal injury (physical or psychiatric) was foreseeable (Page v Smith). Once some personal injury is foreseeable, the defendant takes the claimant as they find them — including psychiatric vulnerability (Page v Smith; Smith v Leech Brain).” [Link to PQ facts]
If SECONDARY VICTIM→ The specific psychiatric harm must be foreseeable in a person of ordinary fortitude in C’s position (Bourhill v Young; Alcock). Foreseeability for secondary victims is assessed narrowly to limit claims. If C witnessed violence to a close relative, foreseeability is satisfied (McLoughlin). Once some personal injury is foreseeable, the defendant takes the claimant as they find them — including psychiatric vulnerability (Page v Smith; Smith v Leech Brain).” [Link to PQ facts].
If BYSTANDER WITH NO CLOSE TIE→ The specific psychiatric harm must be foreseeable in a person of ordinary fortitude in C’s position (Bourhill v Young; Alcock). Foreseeability for secondary victims is assessed narrowly to limit claims. [Link to PQ facts]. The courts have deliberately set a very high bar to avoid floodgates.For the courts, it is likely that witnessing [PQ facts] is distressing, but not so exceptionally horrifying that an ordinary person would suffer psychiatric injury. This is exceptionally likely as in McFarlane v EE Caledonia, even witnessing a large-scale fire and knowing people were dying was held insufficient. Accordingly, psychiatric injury to a person of ordinary fortitude was not foreseeable. Therefore, although harm was foreseeable in a broad sense, it was not foreseeable that a person of ordinary fortitude in X’s position would suffer a recognised psychiatric illness. The claim fails at the foreseeability stage of secondary victim analysis.
4) Once a duty is established, determine whether there was a breach? [apply briefly this is NOT a debate]
If YES → The question is whether the defendant fell below the standard of care expected of the reasonable person in the defendant’s position (Blyth v Birmingham Waterworks). This is an objective test (Blyth); D’s good intentions or inexperience are irrelevant (Nettleship v Weston). In assessing breach, the court balances several factors: i) First, Likelihood of harm: was the risk trivial or freakish (because if the risk was rare/ minimal/ freakish / where the chance of harm was infinitesimal like the cricket ball in Bolton v Stone, risk may not require precaution)? ii) Second, the seriousness of potential harm: (because Even if the likelihood were small, greater care of precautions is required where consequences are severe as in Paris v Stepney where blindness in a single eye heightened the seriousness of foreseeable loss and justified extra inexpensive precautions.)? , iii)Third, cost and practicality: would replacing / adding protections be inexpensive (because only reasonable, not perfect, precautions are required to be in place, so an inexpensive cost cannot justify inaction as per Latimer v AEC)?, iv) Fourth, social utility: In Watt v Hertfordshire CC, it was established that if the defendant’s act has high social value (emergency rescue, saving life as in Watts), so the courts will permit more risk if public good outweighs private safety, v)It does not assist D that other businesses in this industry did similar because conformity is relevant but not conclusive (Re Herald of Free Enterprise). The ordinary business owner in this industry must still take reasonable precautions once a danger is known.[apply to PQ facts]. On these facts, with these factors are balanced holistically, Balancing these factors, the risk to C was obvious, the injury potentially serious, and precautions straightforward. Thus, the balance tilts towards D likely breaching the duty of care. One may argue that it might seem harsh to impose the same standard on a small business owner as on a professional. Yet the law’s objectivity, established in Nettleship, reflects a policy choice: public safety and predictability outweigh sympathy for the inexperienced defendant. As Stapleton argues, negligence law treats such cases as part of the “moralised cost of enterprise” — the business’ profits from inviting customers and must bear the cost of preventing foreseeable accidents. This allocation, while not morally perfect, preserves both equality before the law and efficient risk distribution.
If NO → The question is whether the defendant fell below the standard of care expected of the reasonable person in the defendant’s position (Blyth v Birmingham Waterworks). This is an objective test (Blyth); D’s good intentions or inexperience are irrelevant (Nettleship v Weston). In assessing breach, the court balances several factors: i) First, Likelihood of harm: was the risk trivial or freakish (because if the risk was rare/ minimal/ freakish like the cricket ball in Bolton v Stone, risk may not require precaution)? ii) Second, the seriousness of potential harm: (because greater care of inexpensive precautions is required where consequences are serious as in Paris v Stepney where blindness in a single eye heightened the seriousness of foreseeable loss and justified extra precautions.)? , iii)Third, cost and practicality: would replacing / adding protections be inexpensive (because only reasonable, not perfect, precautions are required to be in place, so an inexpensive cost cannot justify inaction as per Latimer v AEC)?, iv) Fourth, social utility: In Watt v Hertfordshire CC, it was established that if the defendant’s act has high social value (emergency rescue, saving life as in Watts), so the courts will permit more risk if public good outweighs private safety, v)is the act a common practise in the industry(because even if it is, that is relevant but not conclusive as in Re Herald of Free Enterprise)? [apply to PQ facts. On these facts, with these factors are balanced holistically, the balance titls towards a breach being unlikely.] Hence, the justification for tolerating danger is absent. The omission therefore falls below the reasonable standard.
The law’s tolerance of some risk reflects pragmatic deterrence limits; negligence is fault-based, not accident insurance.
5) Factual causation: Apply “but for” test (Barnett v Chelsea Hospital). “But for D’s negligent act, would C have suffered psychiatric illness?”.
6) Legal causation:
If D’s NEGLIGENCE CAUSED SUICIDE OF A VICTIM→ The question arises whether C’s subsequent suicide breaks the chain of causation. Ordinarily, a claimant’s deliberate act (like suicide) might be treated as a novus actus interveniens — an independent act breaking the chain (McKew v Holland).
However, where the psychiatric condition CAUSED by the defendant’s negligence leads to the victim’s suicide, the courts do not treat it as breaking the chain, because it’s a foreseeable damage flowing from the psychiatric harm and the act is not truly voluntary (Corr v IBC).
If D’s NEGLIGENCE PARTIALLY CAUSED SUICIDE OF A VICTIM→ If, however, the suicide was only PARTIALLY CAUSED by the negligence, C will be deemed to have retained some control, so do step 7 then step 8, 9, 10, 11. there will be small deduction for contributory negligence might be made. only a minor reduction (≤10%) and extremely uncommon.
If D’s NEGLIGENCE DID NOT CAUSED SUICIDE OF A VICTIM→ If C’s suicide is wholly unrelated to D’s negligence, causation fails entirely. The suicide is a novus actus interveniens breaking the chain of causation (Reeves v Commissioner of Police distinguished).” Only do steps 7, 9, 10 and 11, skip 8.
7) Under The Wagon Mound (No 1), only harm of a foreseeable type is recoverable.
Psychiatric harm is not too remote if it was a foreseeable consequence of D’s negligence (Page v Smith; Bourhill v Young).
8) Can they rely on the defence of Contrib negligence(Froom v Butcher)?
If YES → DEBATE: Contributory negligence may apply if C failed to take reasonable care for their own mental or physical safety, and this contributed to their psychiatric harm (e.g: If C knowingly remained in a dangerous situation or ignored professional advice after the traumatic event such as refusing counselling, returning to the scene recklessly). However, courts are cautious about applying it where the injury is psychiatric, since distress reactions are rarely deliberate or “negligent.” Courts avoid overusing contributory negligence in psychiatric claims to prevent unfairly blaming victims for their mental vulnerability. The reduction of damages must be proportionate to fault, “just and equitable”, though courts have been criticised for arbitrariness in apportionment. In psychiatric harm claims, any deduction tends to be small (typically <15%) because blameworthiness is usually low and C’s response is largely involuntary.
If NO → none were present.
9)Can they rely on the defence of Volenti: (Morris v Murray)?
If NO → This defence can be applied only where the claimant freely and knowingly accepted the risk (Morris v Murray). The claimant must have had a genuine choice which requires voluntary, informed acceptance (Smith v Baker). Volenti is almost never successful in psychiatric harm claims. To succeed, D must prove that C freely and knowingly accepted the specific risk of psychiatric injury (Morris v Murray; Smith v Baker). This is conceptually difficult: few people knowingly consent to the risk of mental breakdown. Courts set a very high bar; allowing volenti too readily would undermine the protective purpose of negligence law in psychiatric cases.
10)Can they rely on the defence of illegality (Patel v Mirza)?
If YES → DEBATE: llegality can apply only where C’s psychiatric harm arises directly from their own unlawful act — for instance, where a participant in a criminal enterprise suffers mental trauma as a result of the illegal conduct. Moving away from Tinsley, the court now weighs three policy considerations: i) the purpose of the law that the claimant’s conduct infringed; ii) whether denying recovery would enhance that purpose; and, iii) whether denial would be proportionate, considering the seriousness and centrality of the illegality to the claim and whether refusal would produce a fair and coherent outcome. Where the claimant’s wrongdoing is central to the harm (e.g. A burglar traumatised after causing another’s death in the break-in (cf. Revill v Newbery) would likely fail — recovery would undermine legal coherence.), coherence demands that recovery is not allowed.
If NO → DEBATE:Where the claimant’s illegality is incidental or peripheral to the harm (e.g. a minor regulatory breach unconnected to the injury), the proportionality test may favour allowing recovery for the claimant.
11) Conclusion
If NO DEFENCE → If the claimant satisfies the relevant foreseeability and control mechanisms, and no defence applies, liability will be established.
Overall, this analysis reflects the law’s cautious efforts to balance compensating genuine psychiatric harm and preserving manageable limits on duty.
If ANYTHING ELSE → wing it then add “Overall, this analysis reflects the law’s cautious efforts to balance compensating genuine psychiatric harm and preserving manageable limits on duty.”
Negligence: STEPS TO MEMORISE
TYPE 6: Pure economic loss & negligent misstatement / services
Negligence: STEPS TO MEMORISE
TYPE 7: Product liability in negligence (chains of manufacturer / component / retailer)
Negligence: STEPS TO MEMORISE
TYPE 8: Defective premises / construction negligence (incl. DPA overlap)
Negligence: STEPS TO MEMORISE
TYPE 9: Causation-heavy chains (rescuers, novus actus, loss of chance)
