Chapter 11- The tort of negligence Flashcards
Outline the difference between the Law of Torts and Contract and Criminal Law
A tort is a civil wrong and is primarily about providing a remedy for people for harm that they have suffered. The Law of Torts concerns involuntary obligations that are imposed upon persons by the law.
Criminal Law is primarily about punishing the people who have committed wrongs in the eyes of the state.
In the Law of Contract, the obligations imposed in the contract have been voluntarily agreed to by the parties when they entered into the contract
Explain the necessary ingredients of negligence
The three necessary ingredients to establish a duty of care are:
the defendant owed the claimant a duty of care;
the defendant breached that duty of care;
reasonably foreseeable damage was caused by the breach of duty.
The three elements sometimes overlap, and in a court case the issues are often looked at together rather than separately.
Explain how a duty of care may be established
The claimant must establish that there is legal authority for the duty existing or where it is a new duty of care use the three-stage test:
the harm or loss caused was reasonably foreseeable, and
there was proximity between the claimant and the defendant, and
it is fair, just, and reasonable in all the circumstances for the law to impose a duty on the defendant
Understand the special requirements for the recovery of pure economic loss and for loss as a result of psychiatric injuries
Pure economic loss is where the financial loss of the claimant is not connected to any physical injury of the claimant or damage to his property.
Recovery of pure economic loss through the tort of negligence is very limited. A duty of care will only be imposed if there is a ‘special relationship’ between the parties
Describe the principle of breach of a duty of care
The claimant must establish that the defendant broke his duty of care by doing something that a reasonable man in the circumstances would not have done, or failing to do something that a reasonable man in the circumstances would have done.
The standard of care is an objective test.
In deciding a duty has been breached, the court will take into account the probability and potential seriousness of harm being caused to the claimant, the reasonableness/practicalities of taking precautions, and the usefulness to society of what the defendant was attempting to achieve
Explain the extent of damages resulting from breach of a duty of care
The claimant must prove, on the balance of probabilities, that the defendant’s negligence caused or materially contributed to the injury or loss sustained.
The loss or damage suffered by the claimant must be reasonably foreseeable.
If a claimant has a particular weakness and, therefore, suffers a greater injury than a normal person, the defendant will be liable to the full extent of the claimant’s injuries.
The chain of events may be broken by an intervening event or act.
The defendant is only liable for injury up until the intervening event.
A defendant who injures a claimant who has already been injured will be liable only in so far as his act increases or exacerbates the pre-existing injury
