Chapter 10 Torts of Negligence and more Flashcards
What are the essential elements that allows an injured party to sue under tort of negligence?
- There was a duty of care owed to injured party
- That duty of care was breached
- Resulting Damages
What are the three criteria to prove that a duty of care was owed to injured party?
The three test follow the Spandeck’s test.
First criteria would be to prove factual foreseeability
The second test would be to prove proximity
The third test would be to prove if there are any policy considerations that might negate the duty of care owed.
How do you prove factual foreseeability
You can prove factual foreseeability by asking the question:
” Is it reasonably foreseeable that guilty party’s act/carelessness directly leads to the injured party’s suffering”
What is the first stage in Spandeck’s test?
The first stage in Spandeck’s test would be the stage of proximity.
Proximity can be proven in three ways.
1) Physical proximity, in terms of time and space.
2) Legal proximity, what were the legal relationship between injured party and guilty party?
3) Causala proximity, causal relationship between the particular act or course of conduct and the injury sustained.
What is the second stage in Spandeck’s test?
The second stage is to ask if there are any policy considerations that negate the duty of care owed to the injured party.
Once duty of care has been established, what do you do next?
Prove that duty of care has been breached.
This can be done through proving [SALS]
Level of skill needed
Cost of avoiding risk
Likelihood of injury
Seriousness of injury
What is the relationship between tort of negligence and care of skill needed
Name the case study and relevant details
The lower the level of skill needed, the lower the standard of care owing and the more likely the breach of that duty.
Case study: Wells V Cooper
Case detail: Injured party contracted an amateur householder for his house. The door was so loosely fitted that when the injured party pulled on it, the door broke and inured him.
Court held that householder was required to show a standard and care of a reasonably competent carpenter, he did not breach that care of skill required.
State the relationship between tort of negligence and cost of avoiding risk.
Name the case study and relevant details
If risk of harm to plaintiff is high, the court would demand that the defendant to take greater steps to minimise the risk even if such costs are high.
Case: Latimer V AEC
Case detail: An oily surface was found to coat the floors of AEC factory. AEC used all of its sawdust to coat the floor and clean the oil off. However, Latimer still slipped on the floor and suffered injuries as a result.
Court held that AEC took reasonable steps to mitigate the risk. AEC did not breach the required standard of care owed .
State the relationship between tort of negligence and likelihood of risk
Name the case study and relevant details
The higher the likelihood of risk, the court would demand more care to be taken.
Case study: Bolton V Stone
Case details: Stone was playing cricket and the ball flew out of the playing area and struck someone in the head. Plaintiff tried to sue them for tort of negligence.
Court held that the likelihood of the ball flying out was so low that the guilty party had taken reasonable steps to reduce the risk and that “ any reasonable person “ would not have done anything more to reduce this risk.
State the relationship between tort of negligence and seriousness of injury
Name the case study and relevant details
The higher the seriousness of injury, the higher the standard of care required of the defendant.
Case study: Paris V Stepney
Case detail: An employee has vision in one eye, employer had failed to provide safety goggles for the employee. Court held that plaintiff was owed a higher duty of care due to the seriousness of the injury.
What is the general rule regarding tort of negligence.
How does the Doctrine of Res Ipsa Loquitor affect this general rule?
The general rule of tort of negligence states that the defendant is innocent until proven negligent.
The doctrine of Res Ipsa Loquitor shifts the burden of proof to the defendant to proof that he is not negligent. Defendant will be presumed negligent until proven otherwise.
What are the conditions needed to invoke Res Ipsa Loquitor
The two conditions are
1) Defendant has full control and management of the event that causes the injury
2) Injury would not happed BUT FOR the negligence
After proving breach of duty of care, what is the next element that the plaintiff must show for tort of negligence?
The plaintiff has to prove resulting damage.
More specifically, defendant has to prove that he is injured as a direct result of the defendant’s negligence.
How do you prove resulting damages from tort of negligence?
Causation
Remoteness
How do you prove causation under resulting damages?
What is the difference?
Causation can be proven in two ways.
[Causation in fact]
- By using the but for test, the plaintiff would not have suffered a loss but for the breach of duty, there is causation in fact. Loss must be caused by the breach.
[Causation in law]
- On the other hand, causation in law looks at the question as to which specific event will be treated as the cause for the purpose of attributing legal responsibility
Difference:
The causation in fact uses the but for test which opens a floodgate of causes to see which specific event was the event that caused the damage
Causation in law seeks to limit this and assign the new intervening act as the one that is the most blatant and unreasonable.
Define the concept of remoteness
Remoteness used to limit the scope of damage which may be claimed against the defendant.
How do you prove remoteness under resulting damages?
What is the difference?
Remoteness can be proven in two ways.
[Direct consequence test]
Whether the damage was a direct result of the defendant’s breach of duty
[Factual foreseeability test]
Whether the defendant knew that his negligence would lead to a reasonable foreseeability of injured party’s damages.
Wagon mound case: Held that fire was a direct result of the defendant’s breach. BUT it was unforeseeable that oil would burn in water. Damage WAS NOT factually foreseeable to be caused by defendant’s breach.
Define the egg shell skull rule
As long as defendant can reasonably foresee the type of injury, he is liable for the full extent, even if he cannot see the full extent of injury
What are the defences to tort of negligence
- Volenti Non-fit Injuria
- Contributory Negligence
- Disclaimer that has to follow UCTA
Describe the concept of volenti non fit injuria
The concept states that if the plaintiff has full knowledge of the risks involved and still consents to the risk.
Defendant can argue Violent non-fit injuria as a full defence.
Describe the concept of contributory negligence
The concept of contributory negligence revolves around how a defendant might be able to show that the plaintiff’s injury was the result of partly the plaintiff’s own fault.
Damages recovered can be reduced to the amount the court thinks is equitable due to defendant’s fault.
Contributory negligence is partial defense
Define the relationship of psychiatric harm and tort of negligence
Psychiatric harm is where the defendant suffers from mental trauma or stress resulting from the defendant’s negligence or breach.
As a result the court generally would not award damages on a psychiatric harm basis.
What is the difference between primary and secondary victim
Primary victims: A defendant’s negligent act caused the plaintiff to directly suffer injuries or psychiatric harm
Secondary victims: A person who suffers psychiatric harm as a result of injury to others.
What are the exceptions where the court will grant psychiatric damages to secondary victims?
Generally for secondary victims, the three exceptions need to be fulfilled:
1) Close loving relationship with primary victim
2) Close proximity in time and space
3) Aural or visual perception in the immediate aftermath
What are the other torts available?
1) Torts of passing off
2) Torts of defamation
3) Torts of breach of contract
4) Vicarious liability
What are the three conditions needed to prove tort of defamation
1) Defamation needs to be published
2) Defamation must be untrue
3) Defamation must have the effect of lowering one’s reputation generally
What are the three elements needed to prove tort of passing off?
1) Need to establish that there is goodwill or reputation attached to his business
2) Misrepresentation must have been made by tortfeasor
3) Injured party must suffer or is likely to suffer from defamation
With regards to negligent misstatement, what are the factors to determine a special relationship?
Are there any exception to any of the factors?
1) Was advice paid for?
- If advice was paid for and the advisor knew that it was going to be relied upon. Good evidence for special relationship
2) Did advisor have experience or special skill needed to give this advice?
- If advisor was known or is someone from the industry with experience or skill. Good evidence for special relationship
3) Is it reasonable to rely on the advisor’s advice?
- If it is reasonable to ascertain that the advisor knew/ ought to have known that advisee is likely to rely upon his advice. Good evidence for special relationship
Exception for point 3:
- Even if adviser knew that his advice was going to be relied upon, but if it is reasonable to ascertain that the advisee would NOT ONLY RELY UPON HIS advice, advisor would not be liable.
4) Disclaimer
- To limit or exclude liability. BUT need to comply with UCTA
What is the factor you use to show a breach in special relationship?
The standard of care is as follows “reasonably competent fellow in that industry”
Therefore, if the tortfeasor or guilty party would behave contrary to the standard of care. It can be said that they have breached their duty brought about by special relationship
What is the key difference between Negligent Misstatement and Negligent Misrepresentation?
Negligent misstatement requires a special relationship BUT does not require a contract
Negligent misrepresentation does not need a special relationship but requires a contract.
Define pure economic loss
Refers to financial loss not associated with any damage to plaintiff’s body or property
What are the 3 criteria needed to claim pure economic loss
- Developers owed a duty of care
- Very close proximity between them
- Not a case of unlimited liability
