Chapter 5 - Negligence Flashcards
What is a tort?
A tort is a civil wrong and covers situations where damage has been incurred but where there is no pre-existing contractual relationship (i.e assault, false imprisonment, trespass, nuisance)
What type of tort are we concerned with in this course?
The tort of negligence
What may the terms ‘negligence’ or ‘negligent’ refer to?
The terms ‘negligence’ and ‘negligent’ may refer to the careless way in which an act is carried out, or to the tort which arises when a person is in breach of a legal duty of care that they owe to another, thereby causing that person harm or loss.
What is the limitation period (during which an injured party must take proceedings) from the damage caused by the tortious act being suffered?
Six years from the damaged caused by the tortious act being suffered (or three years in the case of personal injury).
What elements make up a tort of negligence? (4)
What is meant by duty of care?
Duty of care is a legal obligation to act in a certain way towards others, in accordance with certain standards.
What are the tests to decide whether or not a duty of care exist? Define each (4)
Who’s responsibility is it to prove that there is a breach of duty of care?
Whether or not there has been a breach of duty is a question of fact to be shown by the claimant against the defendant
Except where Res ipsa loquitur (‘the facts speak for themselves’) applies
What are the seven principles established regarding the standard of care needed to satisfy the duty of care?
- Particular skill - a professional performing a duty, their actions are expected to reflect the skills and knowledge typical of their profession or role (i.e. a surgeon is held to a higher standard than a layperson because of their specialized medical training)
- Lack of skill - lacking in skills or necessary training of the defendant are not relevant
- No hindsight - rely on the knowledge and general practice at the time of the act
- Body of professional - an individual’s actions or decisions should align with the generally accepted professional opinion or practices within their field.
- Advantage and risk - these must be reasonably balanced
- Emergency - thIn emergency situations, the standard of care may be adjusted based on the urgency and the circumstances at hand (the reasonable man test is applied to the particular situation)
- Vulnerability - higher standard of care is owed to protect the sight of a worker who was blind in one eye as an injury to his good eye would blind him
What does the claimant need to prove to succeed in an action for negligence?
To succeed in an action for negligence, the burden of proof is on the claimant to prove, on a balance of probabilities, that:
– the defendant owed a duty of care to the claimant to avoid causing injury, damage or loss
– there was a breach of that duty by the defendant
– in consequence the claimant suffered injury, damage or loss
What is res ipsa loquitur? Who bears the burden of proof in proving breach of negligence in these situations?
‘The facts speak for themselves’ - the principle that the mere occurrence of some types of accident is sufficient to imply negligence
The court will infer that the defendant was in breach of the duty of care and therefore it is the defendants responsibilty to prove that the cause of the damage was not due to their negligence
Under what circumstances will a person be compensated regarding loss caused by a breach fo a duty of care?
A person will only be compensated if they have suffered actual loss, injury, damage or harm as a consequence of another’s actions
This will be for financial loss directly connected to such injury (for example, loss of earnings) or property damage (consequential economic loss) - not usually pure economic loss
Under what circumstances allow for recovery of pure economic loss?
Where there is a special relationship between the parties
When may professional/expert advisors owe a duty of care in addition to their contractual obligations?
Where an adviser (such as an accountant, banker, solicitor or surveyor) makes a statement in some professional or expert capacity, where it is likely that others would rely on what they said, then they may owe a duty of care in addition to their contractual commitments.
However, they will not be liable for advice given informally or on a social occasion.
Outline the Hedley Byrne & Co Ltd v Heller and Partners Ltd 1963 case and what conclusions can we draw from it
The facts: C was an advertising agent acting for a new client, Easipower Ltd. C requested information from Easipower’s bank, D, on its financial position. D returned non-committal replies, which expressly disclaimed legal responsibility, and which were held to be a negligent misstatement of Easipower’s financial resources.
Decision: While D was able to avoid liability by virtue of its disclaimer, the House of Lords went on to consider whether there ever could be a duty of care to avoid causing financial loss by negligent misstatement where there was no contractual or fiduciary relationship. It decided that, had it not been for the disclaimer, D would have been liable for negligence, having breached the duty of care, because a special relationship did exist.
In reaching the decision in Hedley Byrne, Lord Morris said the following: ‘If someone possessed of a special skill undertakes….to apply that skill for the assistance of another person who relies on that skill, a duty of care will arise….If, in a sphere in which a person is so placed that others could reasonably rely on his skill….a person takes it on himself to give information or advice to….another person who, as he knows or should know, will place reliance on it, then a duty of care will arise.’
