Negligence Flashcards
Define the tort of negligence
‘A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant.’
What are the elements making up negligence?
Duty of care (was one owed?)
Breach of the duty (did D fall below the standard of care?)
Causation (did D’s breach cause damage to C?)
Defences (are any applicable?)
Is negligence a statutory or common law tort? What are the implications of this?
Common law. Whether a duty of care is owed is determined by the courts.
What are duty situations with examples? When do duty situations not ordinarily apply?
Situations that the court has ruled establish a duty of care e.g., between road users, doctor to patient, employer to employee, manufacturer to consumer, teacher to pupil.
These duties can only be relied on by C if they have suffered physical injury or physical damage to property.
Omissions, pure economic loss and pure psychiatric harm are considered under a separate set of rules.
What is the neighbour principle?
The test laid down in Donoghue v Stevenson. It set out that a duty of care is owed to those to whom you have on your mind when doing a certain act because you ought reasonably to have foreseen the likelihood of their injury.
The test was applied by courts to determine whether a novel situation gave rise to a DoC.
What is the Caparo test? How does it limit the scope of the neighbour principle?
The test that built on the neighbour principle and is applied by the courts to determine whether a novel situation gives rise to a DoC.
The three questions to be considered are:
* reasonable foresight of harm to the claimant;
* sufficient proximity of relationship between the claimant and defendant; and
* that it is fair, just and reasonable to impose a duty.
The first two questions reiterate the neighbour principle. The third allows the court to reach a conclusion based on policy matters, limiting the wide scope of Donoghue v Stevenson.
What was the incrementality point raised in Caparo?
That negligence should only develop incrementally and by analogy with established authority.
Illustrate the foreseeability criterion of the Caparo test.
If a lorry is speeding and crashes into a motorist, then a man arrives at the scene and faints, breaking his arm, the lorry driver would only owe a DoC to the motorist and not the man. The man is not a foreseeable victim of the lorry driver’s negligence, so no DoC is owed.
Illustrate the proximity criterion of the Caparo test.
A statutory audit misreports a company’s accounts, causing a man to purchase stocks. When he loses money because the company is actually undervalued, he could not seek damages from the audit firm because the relationship was not sufficiently close between the two.
Illustrate the fair, just and reasonable (policy) criterion of the Caparo test.
A mother sues the police for failing to apprehend a serial killer who killed her son, as they acted negligently in their investigation. No DoC is owed here; it has been ruled that such a broad duty on the police to the public at large would be too wide and onerous.
What factors will the court take into account in determining if it is ‘fair, just and reasonable’ to impose a DoC in a novel duty situation?
Floodgates Argument: Concern that allowing one case to succeed may open the door to numerous similar cases.
Deterrence: Courts may rule in favor of a claimant to deter others from engaging in wrongful or anti-social behavior.
Resource Consideration: Courts are aware that compensation often comes from insurance, and the cost may result in increased premiums for society.
Public Benefit: Courts may consider the broader benefit to the public, such as increased safety, in their decisions.
Upholding the Law: Courts may prioritize upholding legal rules, even if it seems unjust, to maintain the law’s authority and consistency.
In what situations are the Caparo criteria less likely to be satisfied?
Harm is caused by a public body rather than an individual
Harm is caused by an omission
Harm is pure psychiatric injury
Harm is pure economic loss
What is an omission and what is the general rule applying to them?
An omission is where one fails to act to prevent harm to C.
The general rule is that no DoC is owed for omissions.
What are the exceptions to the general rule of no liability for omissions
The duty not to make a situation worse
Occasions where there is a duty to act positively
What is the duty not to make the situation worse? Give an example.
In general there is no duty to act positively for the benefit of others. However, if someone decides to act, they have a duty not to make the situation worse.
Sam, trying to help a drowning stranger (Adam), inadvertently causes harm to Adam. He could be liable because he has a DoC not to worsen the situation.
In situations where there is already an established DoC between two actors from another case, does Caparo need to be followed?
No. The existing relationship can be relied on. Caparo is only followed in novel situations.
Whether a duty arises and whether it is breached are separate issues. How are these identified in a fact pattern?
Duty arises - reasonable foreseeability, proximity, fair just and reasonable
Breach - fell below SoC
What is the test used to assess whether there has been a breach of the duty of care?
The court determines the standard of care (SoC) for the circumstances (a question of fact)
The court decides whether D’s conduct fell below the SoC (a question of fact)
How is the SoC determined?
They must take as much care as would be taken by a reasonable person i.e., the completely average person.
This is an objective test - the personal attributes of D are not accounted for.
It is also an impersonal test - it is not what D would foresee, but what the average reasonable person would foresee.
D need not do their best - only the standard taken by the reasonable person.
Sometimes the ‘reasonable person’ SoC is modified. When are these special standards placed on D?
When D has a special skill
When D is a child
What is the special skill modification to the reasonable person SoC?
Where a person has a special skill (or professes that they do), they are judged according to the degree of competence to be expected from someone who has that skill (e.g., a doctor, professional driver etc)
As long as a defendant’s actions are supported by a reasonable body of professional opinion, they should not be judged to be negligent
If a defendant does not profess to have a particular professional skill (as in Wells v Cooper), they may not be required to meet a higher professional standard. However, they must still meet the minimum standard required by the task undertaken. Moreover, if they undertake a task which requires a special skill which they do not possess, that in itself is likely to be negligent.
What is the under-skilled caveat of the reasonable person SoC? Give examples
Amateurs must beet the standard of care and skill set by the court and no allowance is made for their lack of qualification, experience, or skill.
E.g., a learner driver is held to the same standard of other road users.
E.g., A junior doctor is expected to show the same level of competence of a full doctor holding the same post.
E.g., when doing odd jobs around the house, a householder is expected to exercise the same level of skill as e.g., a reasonably competent amateur carpenter.
What are is the SoC required of children?
A child defendant will, therefore, be expected to show such care as can reasonably be expected of an ordinary child of the same age.
The younger a child is, the less likely they are to be liable.
When determining the reasonable SoC, what factors do the court need to weigh up?
The magnitude of the risk created by D’s activities
The precautions which D ought to reasonably have taken in response to that risk
D’s purpose (its value to society)
Whether D complied with common practice
What, in the circumstances, the reasonable person would have foreseen (the current state of knowledge)
When assessing the magnitude of the risk created by D’s activities, what elements are considered?
The likelihood of an injury occurring - the greater the chances of D’s activity causing injury to C, the more precautions he must take. Where the possibility of injury is fantastical and unlikely, no precaution needs to be taken.
The risk of greater injury - the more serious the possible harm to C, the more care D must take.
The cost and practicability of precautions is further factor the court will consider when determining the SoC. What will the court consider when assessing this factor?
If the risk of injury could have been greatly reduced at low cost to D, D will have acted unreasonably if he fails to take the necessary precautions.
But if D would incur great expense which would only produce a very small reduction in risk, it will be reasonable for D to do nothing. However, great expense will not excuse D where the risk is great.
D’s purpose is a further factor that the courts will consider in determining the SoC. What will the court consider when assessing this factor?
If D’s behaviour is in the public interest, D is less likely to be held liable for negligence.
If a human life is at stake, D may be justified in taking abnormal risks.
