Chapter 5 - Negligence Flashcards
What is a tort?
A civil wrong and covers situations where damage has been incurred but there is no pre-existing contractual relationship
The tort of negligence - duty of care
The concept that a duty of care is owed to someone with whom you had no contractual relationship.
Test to decide whether a duty of care exists
1) Reasonably foreseeable
2) Proximity
3) Fair, just and reasonable
4) Public policy
Breach of duty of care
The second element that a claimant must prove in an action for negligence is that there was a breach of the duty of care by the defendant
Res ipsa loquitur (‘the facts speak for themselves’)
This rule applies where:
- the cause of damage is not known
- the damage would not have arisen without the defendant’s lack of care
- the thing which caused the damage was under the management and control of the defendant
Loss caused by the breach
The third element that the claimant must demonstrate is that he suffered injury or loss and that this was as a result of the breach
Proof of causation - the “but for test”
This is a question of fact
Would the damage have occurred “but for” the negligent act?
The remoteness of damage will be considered by the court
Professional advice and negligent misstatement
An extension to the general principal of negligence to allow for recovery of pure economic loss there is a special relationship between parties
What factors will the court consider in negligent misstatement?
- The purpose for which the statement is made and communicated
- The relationship between the professional, the recipient any relevant third party
- Knowledge of the professional
- Whether the professional could have said to have assumed responsibility
- The size of any class
- The extent of reliance by the claimant and whether that was foreseeable
- Whether it is fair and equitable
Defences - Contributory negligence
Where the defendant can show that the damage or loss suffered was partly due to the claimant’s fault, damages will be reduced in proportion to his degree of fault
Defences - Volenti non fit injuria (literally ‘to a willing person no injury is done’)
The claimant consented to the risk of loss or damage:
- Consent must be voluntary
- Knowledge is not enough- consent is required
e.g sports injuries
Defences - Exclusion clauses
Where there is an agreement between the parties that contains a provision seeking to exclude or limit liability for negligence
Damages
Damages for negligence are intended to put the claimant in the same position he would have been in if he had not suffered any loss
Vicarious liability
A legal doctrine under which one person can be held legally responsible and liable for tortious acts of another person
Tests for vicarious liability
- The wrongdoer must be an employee
- The employee must have been acting in the course of his employment
