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)
