1. Duty of Care and Breach of Duty of Care pt 2

Question 1

What must be proven to establish basic negligence?

Answer 1

There must be:

1. A duty of care
2. Which was breached
3. which resulted in damage
4. Which (the damage) was not too remote

Question 2

What is the three part test to establishing if there was a duty of care?

Answer 2

1. The damage caused must be foreseeable to the defendant (ie the damage caused is likley to occur because of the defendants act or ommision)
2. The D and C must have a proximate / close realtionship (For example, being customers, being employees, being on their premisies)
3. It must be fair, just, and reasonable to impose the duty

NB: Policy will always be considered, such as flood-gate arguments and emergency service immunity.

Question 3

When is there a breach of the duty of care?

Answer 3

A breach of the duty of care occurs when the defendant falls below ‘the standard of care’

Question 4

What is the standard of care for non-profesionals?

Answer 4

Does the standard of care fall below what is reasonably expected?

Question 5

What is the standard of care for profesionals?

Answer 5

There is a two part test:

1. Does the standard of care fall below the standard of the ordinary, competent members of that profession?
2. Would a substantial body of opinion within the prfoession support the actions taken by the defendant?

Question 6

Will a defective standard practice be a defence to a breach of duty?

Answer 6

No. Even if the defendant was following a standard practice within the profesion, if it was defective it will not be an excuse.

Question 7

How is the casuation of damage calulated?

Answer 7

The but for test is used.

But for the defednants act or ommision, the damage would not have occured.

Question 8

How is the remotness of the damage assesed?

Answer 8

If the damage was reasonably foreseeable, then it is not too remote.

Question 9

What are the three defences to basic negligence?

Answer 9

1. The victim knowingly / Volutarily consented to run the risk - (A complete defence)
2. The victim had acted negligently themselves and therefore contributed to their damage (Damages will be reduced approporitatley)
3. Illegality - Where the illegal action is connected to the damage they will not be able to claim compensation