Introduction to the tort of negligence and duty of care

Question 1

What is Negligence?

Answer 1

Breach of a legal duty to take care by the defendant resulting in loss or damage to the claimant

Question 2

What are the elements of an actionable claim in negligence?

Answer 2

• Loss or damage
• Duty - duty of care owed by the defendant to the claimant
• Breach - breach of that duty by the defendant
• Causation - proof that the breach caused the damage (in law and fact)
• Remoteness - proof that the damage was reasonably foreseeable
• Defences

Question 3

What are some of the common losses and examples?

Answer 3

• Physical/bodily injury - broken arm
• Psychiatric harm - Recognised mental illness beyond emotional distress - reactive depression
• Property damage - Damage to car
• Consequential economic loss (loss to personal injury or damage to property) - loss of revenue when a shop has to close due to damages to the roof or loss of wages when you couldn’t go to work due to a broken arm
• Pure economic loss - lost savings due to bad advice on an investment

Question 4

What test is used to determine a duty of care?

Answer 4

Caparo 3 part test - from Caparo industries and Dickman

Question 5

What was the old test before Caparo

Answer 5

The neighbour principle from Donoghue and Stevenson

Question 6

What is the Caparo 3 part test

Answer 6

• Forseeability - what the reasonable person would be expected to foresee.
  must be reasonably foreseeable that the defendant’s lack of care would cause the claimant harm
• Proximity - the relationship between claimant and defendant
• Fair, just and reasonable - to impose a duty

Question 7

What is established authority?

Answer 7

Some cases already have an established authority (precedent) for a duty of care already being owed and there is no need for the Caparo test

Such as patient and doctor, student and teacher, road user to road user