3 Negligence

Question 1

Describe negligence’s importance

Answer 1

Negligence = ‘skyscraper’ of all torts, important in practice + spills over into other torts

Question 2

What is the basic idea of negligence

Answer 2

‘Fault principle’
When someone’s conduct falls below a certain level of standard, D is required to pay for damage that causes
- this principle general in its application
- negligence = conduct based tort

Question 3

What is the leading case on negligence?

Answer 3

Donoghue v Stevenson 1932 - snail in a bottle case

Question 4

Describe the development of negligence

Answer 4

• relatively new tort
• originally just a way of committing other torts
• torts isolated legal remedy slots (‘forms of action’) until 19th cent
• 19th cent: specific situations where duty to take care arose (eg relationships between innkeepers + guests)
• end of 19th cent: courts searching for a general principle to unite points of liability in duties of care, that would establish circumstances in which duty of care was owed

Question 5

Describe the ‘contractual ideal’

Answer 5

• dominant judicial idea you’re only liable if in fact you have positively / specifically promised to do something + taken on an obligation to do something
• “the contractual fallacy” - posed the particular problem in Donoghue v Stevenson 1932

Question 6

What principle originated from the case of Donoghue v Stevenson

Answer 6

Lord Atkins’s ‘neighbour principle’ - see his quote description

Question 7

Describe the search for principle

Answer 7

• Atiyah: ‘an age of principles’
• moving from ‘forms of action’ where writs not based on a substantive legal category or plan, but merely created ‘adequate royal remedy for a no of v common wrongs, which upset society and with which existing courts dealt in a too slow, incalculable way

Question 8

What did abolition of the forms of action by the Common Law Procédure Act in 1852 lead to?

Answer 8

Led to need to classify law in substantive terms - classifying private law further into contract + tort law (forms of liability based on general principles)

Question 9

What was the effect of the abolition of the forms of action by the Common Law Procédure Act in 1852 on judges?

Answer 9

• still tough for them - “courts were grappling w unpromising material drawn from odd cases in which liability in negligence was derived largely from categories based on status of defendant”

Question 10

What are the three elements of the modern law of negligence?

Answer 10

• the fault element (standard of care)
• the duty element (duty of care)
• the causing damage element / casual element (causation)

Question 11

Describe the fault element (standard of care) of negligence

Answer 11

• most important element in neg
• fault = liability
• no fault = no liability, but loss still has to be absorbed by someone (what about claimant who has to bear costs of his injuries?)
• where D has fallen below requisite standard we say he is in ‘breach of [their] duty’

Question 12

What does fault in negligence mean?

Answer 12

• conduct that is careless

- not taking sufficient care in relation to the foreseeable risks that it creates if injuring others

Question 13

Describe the duty element (duty of care) of negligence

Answer 13

• carelessness only gives rise to liability where there was a pre-existing duty in first place
• some situations where there is no duty of care
• duty of care as a ‘control mechanism’ for courts - a gatekeeper for tort of neg
• role of policy
• but in vast majority of cases, existence of a DoC can be taken for granted, (some are obvious) (eg doctor for patient, road user for other road user + pedestrians), (but some aren’t obvious)

Question 14

Describe the causing damage element / causal element (causation) of negligence

Answer 14

• ‘damage’ is a necessary ingredient of negligence
• negligence must have caused the damage, eg while D may be at fault, we must ask whether that caused damage comparing of, or if damage would have happened regardless in absence of D’s breach of duty
• must be a causal link between D’s lack of care and claimant’s damage

Question 15

Summarise the concept of negligence

Answer 15

• is the breach of a legal duty to take care, resulting in damage, undesired by D, to the claimant
• all 3 ingredients required (the elements) for neg to occur:
  ——- ‘fault element’ (standard of care)
  ——- ‘duty element’ (duty of care)
  ——- ‘casual element’ (causation)