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uni tort exam > Negligence > Flashcards

Negligence Flashcards

1
Q

What is negligence?

A

A legal wrong suffered due to someone failing to take proper care to avoid a reasonable foreseeable risk

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2
Q

How can a duty of care be established?

A

Either contractually (manufacturer to consumer) or the neighbour principle (caparo)

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3
Q

Who do you owe a duty of care to?

A

your neighbour

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4
Q

What is the landmark case?

A

donoghue v stevenson

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5
Q

donoghue v stevenson facts

A

snail in bottle and caught gastroenteritis

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6
Q

what test did donoghue v stevenson produce? (4 parts)

A
  1. D owed a duty
  2. D breached the duty
  3. Breach caused damage
  4. Damage was not too remote
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7
Q

What test came after donoghue v stevenson

A

caparo

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8
Q

What is the caparo test?

A
  1. harm must have been a reasonable foreseeable result of D’s actions
  2. There must be a proximate relationship
  3. Must be fair, just and reasonable to impose a duty
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9
Q

Where does the reasonable person test apply?

A

Breach of duty

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10
Q

A case for breach of duty?

A

Vaughan v Menlove

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11
Q

Vaughan v Menlove facts

A

Haystack caught fire cos no ventillation. he had been warned this would happen

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12
Q

What does Vaughan v Menlove show?

A

the reasonable person test is to be used, best judgement isn’t enough

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13
Q

Where will the standard of care be considered to change?

A

If D is a professional, their actions have a high risk rate, C is frail or disabled or there was a social benefit to D’s actions

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14
Q

How do you prove causation?

A

But for test

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15
Q

Case for bur for test?

A

Barnett v chelsea and kensington hospitals

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16
Q

Barnett v chelsea and kensington hospitals facts

A

D complained of vomiting and stomach pains. Dr said go home. D died of arsenic poisoning. He would still have died had the doctor seen him properly

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16
Q

Barnett v chelsea and kensington hospitals facts

A

D complained of vomiting and stomach pains. Dr said go home. D died of arsenic poisoning. He would still have died had the doctor seen him properly

17
Q

What does the loss or damage need to be in order for C to get a claim in negligence?

A

a direct consequence of the breach of duty

18
Q

Where would the loss or damage not be seen as a result of the breach?

A

. If the chain of events leading up is too long
. If it is unreasonable for D to foresee their actions would cause the loss or damage

19
Q

Case for too remote damage?

A

wagon mound

20
Q

Wagon mound facts?

A

Boat leaked oil in sydney harbour. cotton flew into water and sparks from nearby set the oil alight. This was not reasonably foreseeable

21
Q

What are the three defences?

A

.Illegality
.Consent
.Contributory negligence

22
Q

What is the defence of illegality in latin?

A

ex turpi causa non oritur actio

23
Q

What is the defence of illegality?

A

If C has done something illegal in the course of the negligence and it was linked to the damage they suffered the courts will not favour it

24
Q

Why does illegality not always work?

A

Just because C has done something illegal doesn’t mean it has contributed to the negligence

25
Q

Cases for illegality

A

Holman v Johnson
National coal board v england

26
Q

Consent in latin?

A

Volenti non fit unjuria

27
Q

Where can someone have consented to negligence?

A

.a consent form before medical procedure etc
.rough sport resulting in injury

28
Q

What does woolridge v sumner apply to?

A

consent

29
Q

what does woolridge v sumner tell us?

A

D must have full knowledge of the relevant risks to consent to the breach of duty

30
Q

Is the test for consent objective or subjective?

A

subjective

31
Q

Which case shows the test is subjective for consent?

A

Smith v austin lifts

32
Q

Where must consent be applied with extreme caution?

A

employment cases

33
Q

What is the case for consent as a defence to employment?

A

nettleship v wesotn

34
Q

What is the rule with road users and consent?

A

Even if C accepts the risks of negligence it doesn’t negate the liability of the driver

35
Q

What is the consensus of rescues in regards to consent?

A

If someone chooses to rescue someone harmed by D and is also harmed in the process, D will still usually b reliable as it doesn’t frequently break causal chain

36
Q

What is said about rescues frequently?

A

The rescuer may see it as a moral obligation to help

37
Q

What is contributory negligence?

A

Where C was aware of the risks and did not take appropriate precautions alike to D

38
Q

What is an example of contributory negligence?

A

If C is in a car where somebody is joyriding but isn’t wearing a seatbelt

39
Q

How is contributory negligence established?

A

By using factual and legal causation (but for test)

40
Q

What case shows contributory negligence?

A

froom v butcher

41
Q

What was said in froom v butcher

A

C’s damages are reduced by 25% if the harm is serious and 15% if less serious

uni tort exam (3 decks)

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