Negligence Flashcards
How does a duty of care arise?
Within established relationships (e.g. employers, teachers, parents, manufacturers, vehicle drivers) and where the Caparo test applies
What is the Caparo test?
- That harm to C from D’s breach is reasonably foreseeable
- There is a relationship of proximity between C and D
- It is fair, just and reasonable to impose a duty of care
In what relationship does a duty of care never arise?
Police to crime victims
When does a duty to act arise?
Only where D assumed responsibility to C, where D created a dangerous situation, where D exercised control over C, or where there is a special relationship between C and D
What duty of care does a rescuer have?
Duty not to worsen the situation
What duty of care does a doctor have in context of medical treatments?
Duty to inform the patient of all material risks (risks that the patient considers important)
When does D owe a duty of care over the acts of a third party, as not to cause harm to C?
Only where D exercises control over the third party, or where D had assumed responsibility for the third party’s actions
Who has the burden of proof when proving breach of duty + causation?
The claimant
What is the standard of judging a breach of duty?
Judged objectively, and lack of experience or knowledge is always irrelevant
Children - judged by a reasonable child of the same age
Professionals with special skills - judged by whether they acted in accordance with the majority opinion of a professional body
Can D claim that they were inexperienced and so did not breach their duty?
No, lack of experience or knowledge is irrelevant
What are the types of causation?
Legal Causation - no intervening acts from a third party and no grossly unreasonable acts from C, and the TYPE of loss is reasonably foreseeable
(but note the egg shell rule)
Factual Causation - but for test
What if the manner of loss was unforeseeable?
It does not matter, as long as the type of harm was foreseeable
Breach of duty - what does C need to show if they may have contributed to their loss?
That D’s act was ‘more likely than not’ to have caused the loss
Breach of duty - what does C need to show if there are multiple potential causes?
That D’s act was a ‘material contribution’ to the loss
Breach of duty - what happens if there is successive harm caused by multiple defendants?
Later defendants will only be liable if they cause new damage/worsen damage
What complete defences to negligence are there?
- Volenti - must show C had full knowledge + assumed the risk freely and voluntarily
- Illegality - illegality must have been core to C’s act
What partial defence to negligence is there?
Contributory negligence, in which case, damages will be apportioned by the courts as just and equitable
What is the rule for recovery under pure economic loss?
Only negligent misstatements made by D that C had relied on, over the course of a special relationship and where D had assumed responsibility (and D is aware of the purpose of the advice and it will be shared with C without C making further enquiry), will be recoverable.
What damages are considered pure economic loss?
Damage to property that does not belong to C
Loss by cost of purchasing defective products
Any financial loss that does not flow from physical damage
Can primary victims of psychiatric harm recover damages?
Yes, as long as physical injury was foreseeable
Can someone recover damages for psychiatric injury that flowed from physical injury?
Yes - all the time. The rules here are for psychiatric injury that does not flow from physical injury.
What are the requirements for secondary victims of psychiatric harm in order to claim damages?
- There’s a close tie of love and affection between C and the victim
- C was present at the accident, or in the immediate aftermath
- C had witnessed the accident with their own unaided senses
- There was sudden shock
- A person of normal fortitude in C’s position would have suffered psychiatric harm
Can distress or anxiety amount to psychiatric harm?
Never, as psychiatric injury must be a medically recognised form e.g. PTSD
What are the different types of damages that can be recovered under negligence?
- Pecuniary losses
- Non pecuniary losses
- Damage to property and its consequential losses (replacement possible only if property is destroyed, repair possible only if property is damaged)
What is the aim of remedies in tort?
To place C in a position had the tort not been committed
Does C have a duty to mitigate losses?
Yes
Remedies - where the victim had died from the tort committed, what can the victim’s estate claim for the dependents?
- Funeral expenses
- Bereavement Losses
- Damages for loss of dependency
Remedies - who can bring bereavement and loss of dependency claims?
- Victim’s partner or spouse
- Victim’s cohabiting partner whom they have lived with for the last 2 years
- Victim’s parents, but only if victim is a minor and was unmarried
Remedies - what happens if an injury is divisible and there are multiple defendants?
Then the defendants will apportion the losses
Remedies - what happens if an injury is indivisible and there are multiple defendants?
C can claim after any one of the defendants for the full amount
What is vicarious liability?
That an employer will be liable for the torts of an employee committed during the course of employment, or the torts of those in a relationship akin to employment AND where there is a sufficiently close connection between the tort and the relationship
Vicarious Liability - when is an employee acting within or out of the course of employment?
Acting within course of employment when: only making a minor deviation from the journey, or where the substance of the act was actually allowed
Acting out of the course of employment when: the journey is for a completely different purpose, or where the substance of the act was prohibited
Vicarious Liability - when is there a relationship akin to employment?
Where the third party was carrying out an act on behalf of D (the employer)
Where D had assigned the act to the third party
Where the third party’s act is integral to D’s business
When will an employer be personally liable for an independent contractor?
- Where it concerns the non delegable employer’s duty of care to their employees
- Where the employer failed to select a competent contractor
What is the scope of the employer’s personal and un-delegable duty of care to their employees?
- Provision of safe premises
- Ensuring colleagues are competent and not a danger
- Provision of safe equipment
- Provision of a safe work system (including supervision)
- Responding to employees at risk of psychiatric injury
Can an employer be liable to an employee for a latent defect?
Yes
Vicarious Liability - is how the parties label their relationship (employee or independent contractor) conclusive?
No - look at all factors e.g. control, provision of equipment and uniform
