Lecture 5 - Introduction to Tort

Question 1

What must be proved before a negligence can be established?

Answer 1

1 The defendant owed the claimant a duty of care
2 The defendant breached the duty of care
3 The breach CAUSED the claimant’s injuries

Question 2

Three criteria to prove a duty of care existed:

Answer 2

Damages must be reasonably forseeable
Must be a sufficiently proximate relationship between parties
Must be fair, just and reasonable to impose duty of care.

Question 3

What is the rule regarding third parties?

Answer 3

There is no duty to prevent harm by third parties unless one of the following apply:

There may be a duty if there is a special relationship between the defendant and the claimant

There may be a duty where the defendant has failed to take reasonable steps to abate a danger caused by third party.

Question 4

Which factors influence the standard of care?

Answer 4

1 Whether harm was forseeable
2 Likelihood of harm and seriousness of consequences
3 Burden of taking precautions
4 Utility of defendant's caution
5 Whether actions were common practice

Question 5

Learned Hand’s Equation

Answer 5

IF Burden > Probability + Loss that will occur = No Liability

IF Burden < Probability + Loss that will occur = Liability

Question 6

When are some groups not subject to reasonable standards?

Answer 6

Children - held to reasonable child of the same age
Defendants in emergency - Doctor on side of the road not held to the same standard as in an operating theatre
Professionals - held to standard of the reasonable member of the profession

Question 7

Res Ipsa Loquitur

Answer 7

‘The thing speaks for itself’

The occurrence can not be proved by claimant, but it would not have happened without negligence (ie sponge left in patient)

Burden of proof shifts to the defendant to prove he was not guilty

Question 8

How is causation determined?

Answer 8

The ‘But for’ test.

But for the defendant’s conduct, would the harm have occurred?

Question 9

‘But for’ test in concurrent causes

Answer 9

Indeterminate causes - where two or more defendants may be at fault for the single cause, but impossible to determine which. Burden of proof shifted to defendants.

Cumulative causes - Two causes combine to one harm, but either would have caused the harm. Both defendants would be liable

Consecutive causes - one cause follows upon the second cause. Court determines whether second act ‘overtakes’ first act.

Question 10

How does the court determine if damage was too remote or not?

Answer 10

1 Consider the foreseeability of the kind of damage
2 Defendant can be liable even if EXTENT of damage was unforseeable
3 Eggshell skull rule - take the victim as you find him.