COML203 WK8-9 L16-17 Tort of Negligence

Question 1

What is negligence in tort?

Answer 1

In the law of tort, negligence refers to the failure of a person to take a reasonable duty of care to avoid causing injury or loss to another person whom he or she owes a duty to.
A plaintiff must prove four element to establish negligence as a cause of action.

Question 2

What is the purpose of the tort of negligence?

Answer 2

The law of tort of negligence imposes obligations on one memeber of society to other members of society to provide compensation for harms caused by breach of such obligations.

Question 3

What are the origins of the tort of negligence?

Answer 3

The tort of negligence emerged as a result of the judgements made in Donoghue v Stevenson [1932].
Established the “neighbour principle”.
Prior to the case, liability for personal injury was founded on contract or in tort of tresspass to the person based on physical damage inflicted directly.
If there was no contract between the person who committed the wrongful act and the party that suffered loss or injury as a result of said wrongful act, the injured party could not take action against the wrongdoer.

Question 4

What are the facts of the Donoghue v Stevenson [1932]?

Answer 4

Plaintiff’s friend brought an opaque glass bottle of ginger beer in a cafe and gave it to her.
After the plaintiff drank some of the ginger beer, she found that the bottle contained the decomposed remains of a snail.
The plaintiff suffered shock and gastric illness and sued the defendant manufacturer of the ginger beer.

Question 5

What was the issue that restricted the plaintiff from being able to sue the manufacturer of the ginger beer in contract in Donoghue v Stevenson [1932]?

Answer 5

The plaintiff did not nor could not sue the retailer nor the manufacturer because it was her friend who has purchased the ginger beer and who had contracted with the retailer. That is, if the plaintiff had sued in contract, she would have failed because she had no contract with the retailer or manufacturer.

Question 6

What was the outcome of Donoghue v Stevenson [1932]?

Answer 6

It held, by the majority of the House of Lords, that the manufacturer of the ginger beer was liable for the injury suffered.
In his judgement, Lord Atkin expounded the neighbour principle, which became a cornerstone of modern law of tort of negligence.
“You must take reasonable care to avoid acts or omissions which can reasonably foresee would likely injure your neighbour”
“Who is then my neighbour in law? The answer seems to be - persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called in question”

Question 7

What are the four elements of a cause of action in negligence. Give a brief explanation of each element.

Answer 7

1. Duty of care
   The defendant must owe the plaintiff a duty of care
2. Breach of duty of care
   The defendant must have breached the duty of care by failing to exercise the standard of care deemed appropriate in the circumstances.
3. Harm and causation
   The defendant’s breach must have caused harm to the plaintiff
4. Remoteness of Harm
   The harm cause must not have been so remote from the breach that it would be undesirable, for economic efficiency or social policy reasons, tom compensate the plaintiff.

Question 8

What is the main question to be asked when determining whether there is a duty of care?

Answer 8

Did the defendant owe the plaintiff a duty of care given the situation?

Question 9

What are the two broad fields of inquiry when determining whether the defendant owed a duty of care to the plaintiff given the situation?

Answer 9

1. Degree of Proximity
   Relationship between the parties
2. Policy Factors
   Whether there are other wider policy considerations that tend to negate or restrict or strengthen the existence of a duty of care

Question 10

What should be considered when determing the degree of proximity?

Answer 10

Generally concerned with the nature of the relationship between the parties.
Is the relationship of such a nature that the defendant could be said to be under an obligation to be mindful of a plaintiff’s legitimate interest in conducting its affairs?

Question 11

What what are six factors that form part of the proximity inquiry and policy considerations?

Answer 11

1. Reasonable foreseability
2. Analogy with other cases
3. Porportionality
   In terms of the burden placed on the defendant compared to the risk that their activity created and the seriousness of the consequences to the defendant opposed to their degree of fault
4. Vulnerability
   Power of defendant having special skills over vulnerable plaintif
5. Other remedies
6. Nature of loss
   Courts are less willing to impose duty of care in cases of pure economic loss compares to physical injury

Question 12

What are four other factors which may be relevant in the proximity inquiry?

Answer 12

1. Time
2. Place and connection
3. Proximity does not need to be physical
   For example, mental or emotional distress
4. Rescue cases
   For example, an injured volunteer firefighter could recover against the person whose negligence caused the fire

Question 13

What factors are relevant in policy considerations?

Answer 13

1. Opening floodgates to indeterminate liability to indeterminate plaintiffs
2. Need for commercial certainty
3. Consistency with developments in other jurisdictions
4. Consistence with previous obiter statements made by the court
5. Likelihood and seriousness of harm
6. Requirement of judgement
7. Impact on existing bases for liability
   Such as under criminal law where statute may have a bearing on whether a common law duty should be recognised
8. Existing statutory regulation
9. Alternative remedies

Question 14

What are some general policy factors that may need to be considered in determining whether there is a duty of care?

Answer 14

1. Reasonableness and Fairness
2. Societal Impact
3. Economic Impact
4. Encouraging socially desirable acts/discouraging socially undesirable acts
5. Avoiding floodgates to indeterminate liability to indeterminable plaintiffs
6. Consistency with statutes

Question 15

What must firstly be determined before determining whether there was a breach of duty of care?

Answer 15

The standard of care.
Whether the defendant breached the duty of care is evaluated in terms of a reasonable person in the position of the defendant.
The standard of care is determined based on the “reasonable person” test.

Question 16

What is the reasonable person test?

Answer 16

The standard of a “reasonable person” is that which an ordinary, reasonable, and prudent person who is reasonably educated and intelligent but non-specialist would do or would not do in the situation of the defendant.
A higher standard of competance may be required than what is actually observed.
Professionals will be judged by the standard of an ordinary skilled person exercising and professing to have that special skill.
People holding themselves out as having a specialist skill will be judged by the standards of a person reasonably competent exercising that skill.

Question 17

What are four factors that should be considered when establishing a breach of duty of care?

Answer 17

1. Degree or magnitude of harm
   The greater the risk of harm, the greater precautions must be taken.
2. Defendant’s purpose
   If actions serves a socialy useful purpose, he or she may be justified in taking greater risks.
3. Practicality of precautions
   Courts expect people to take only resonable precautions in guarding against harm against others.
4. Conformity with established standards
   If defendant acted in accordance with common practice, strong evidence that he or she has not been negligent.
   However, does not stop court from declaring common practice to be negligent.

Question 18

What are the two factors that must be considered when determining harm caused by breach?

Answer 18

1. Plaintiff must show actual loss or damage
2. Damage must have been caused by the defendant’s breach of their duty of care

Question 19

What does remoteness of harm mean?

Answer 19

A person will not be liable for losses that are “too remote”
The harm must be a consequence of the breach of duty of care that could reasonably be foreseeable and expected.

Question 20

What is the purpose of the remoteness of harm element?

Answer 20

Operates to limit a person’s liability to those consequences of their actions which could reasonably be foreseeable and expected to happen.
It would be unfair to make a person liable for consequences completely unexpected or highly unlikely to occur.

Question 21

What are the three remedies for negligence?

Answer 21

1. Damages
2. Contributory Negligence
3. Injunction

Question 22

What are damages?

Answer 22

The most common remedy in a case of negligence.
Damages are an amount of money awarded in a court case.
The amount of money awarded in negligence cases is usually the amount required to put the plaintiff in the same position as he or she would have been in had the defendant not been negligent.

Question 23

What are the four types of damages?

Answer 23

1. Compensatory damages
   The amount of money awarded is only the amount required to put the plaintiff in the same position he or she would have been in had the defendant not been negligent
2. Exemplary or punative damages
   Awarded in order to punish the defendant for outrageous conduct when compenatory damages are deemed an inadqueate remedy
3. Aggravated damages
   Awarded to provide compensation for distress and humiliation
4. Nominal/contemptuous damages
   Awarded when the court believes that the action should never have been brought, even when the plaintiff had a legal right which has been infringed

Question 24

What is contributory negligence?

Answer 24

Where a person in partially at fault for the damage he or she has suffered.
The Contributory Negligence Act 1947 allows the court to reduce the amount of compensation payable by the defendant to an amount the court deems fair, taking into account the plaintiff’s contribution to the damage he or she has suffered.

Question 25

What is an injunction?

Answer 25

A court order requiring the defendant to do something or not to do something.