Chapter 4: Summary Flashcards
Negligence
To claim negligence what three things does the claimant need to prove?
Duty of care owed
Breach of duty
Breach caused the damage suffered by the claimant
Who is a duty of care owed to?
Neighbour
What is the definition of a a neighbour within duty of care?
A person who the claimant would reasonably foresee as affected by their actions.
What are the four tests to determine a ‘neighbour’?
Reasonably foreseeable
Sufficient proximity
Fair, just and reasonable
Public policy
What is the general rule required for someone to perform a breach of duty?
Judged as a ‘reasonable person’.
What are the special considerations required determining whether someone has performed a breach of duty?
Particular skill
Level of skill is not important
The current practice
Courts will consider advantage and risk
Emergency situations
Vulnerable claimant
Who is responsible for proving a breach of duty occured?
Usually up to the claimant to prove breach unless ‘res ipsa loquitur’ apples.
How do you determine if the loss was caused by the breach?
What harm caused to the claimant was caused by the defendant’s breach?
What tests do the courts use to help determine causation?
The ‘but for’ test.
Remoteness
What is the ‘but for’ test?
But for the defendant’s actions would the claimant have suffered the harm?
What losses can be claimed for negligent professional advice?
Can claim for purely financial losses.
When can losses be claimed for negligent professional advice?
If there is a ‘special relationship’ between parties.
What are the three tests where there is a ‘special relationship’ between parties where professional advice is given?
Defendant in business of giving professional advice.
Advice given in business context.
Knows, or should know, claimant would rely on it.
What is the purpose of remedies for damages?
Damages to put claimant in the position they would be in if the negligence hadn’t happened.
When are damages usually available?
Physical damages
Financial loss due to physical damage.
Purely financial losses only if a special relationship exists.
