Negligence Flashcards
What elements must the pl prove in negligience liability
-Duty of care
-The duty of care was breached
-The consequences/harm suffered were as a result of the def’s breached duty of care
-Elements to be considered sequentially
What concept lies @ the heart of neg
-Reasonableness- reasonable care about reasonably foreseeable risk
What are some examples of established categories of duty of care?
-Doctor/patient
-Occupier/entrant
-Teacher/student
-Driver/passenger
-Employer/Employee
What does the neighbour principal refer to
I may have a legal relationship (duty to take reasonable care) with those I should reasonably foresee as affected by my conduct
Why is law not concerned with “carelessness in the abstract”?
D’s carelessness only matters in law if D has a duty to be (reasonably) careful
What does D v S est
- Neighbour principle
duty with a far more limited scope: the duty to take reasonable care in the process of manufacture so as to avoid reasonably foreseeable risks of injury to consumers / users where the consumer has no reasonable opportunity to inspect the quality or integrity of the product before consumption / use.
What does it mean for the DOC to opperate both negatively + positively
DOC- pos (indicating types of relationships where there are legal consequences for failing to take reasonable care for others’ well-being or safety) and negatively (indicating where the courts decline to impose liability, even if P can show that D was negligent and caused P’s harm
What did Chapman v Hearse prove
At the duty stage P needs only show that harm of that general character was a reasonably foreseeable consequence of negligently engaging in that kind of activity, P does not have to show that the exact chain of events was something reasonably foreseeable.
Why is the non-fault torts syst considerded fairer
P receives no remedy if they cannot find, prove and show someone is at fault.
What do loss of life expectancy + pain + suffering have in common
Courts find v dif to set awards of damages for these sub categories
What are the core principles of damages as outlined in Todorovic v Waller?
-Damages aim to restore the Pl to a position that they would have neem in had the def not caused the harm
-Damages can only be recovered once and as a lump sum
-The Court cannot monitor/dictate how Pl spends damages
-BOP lies on Pl to prove the damages they seek
What are the heads of damages that a pl can claim
-Non-penciular- Non-eco (aka general damages)- Pain + suffering, loss of amenities, loss of life expectancy, disfigurement
-Special/Penicular (eco damages)- Loss of future earnings, actual financial costs/recoverable expenses
What is the ‘But for’ test + where is it reflected in (case + stat)
-Proof of ‘factual causation’- Pl must prove on BOP ‘But for the negligient (act or omission) of the def then the harm wouldn’t have occurred
-Leg-5D(1)(A)- The defs act/omission was a necessary condition of the occurence of the harm
-Cases- Strong v Woolworths
Adeels Palace PTY LTD v Moubarak
How do we determine if the Def’s behaviour caused the Pl’s harm
section 5D of Civil Liability Act 2002
When might a def not be liable for pl’s harm despite factual causation
-D’s conduct may have been reasonable (not breached DOC)
-D may not have owed relevant DOC to people like Pl (esp see in s5D(1)(b) + DOC)
How to prove causation when Def’s neg involved fail to warn of risk
-Section 5D(3)
-To be determined subjectively in light of all relavent circ (5D(3)(a)
-Any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (5D(3)(b)
-Case- Wallace v Kam
RTA v Deder
What is a common element to all established DOC categories?
P tends to rely on someone like D to control a risk
Why might D not by liable to P even though when careless + caused P’s harm
Don’t owe P or ppl like P a relevant DOC
