Negligence Flashcards
Negligence
Elements needed to prove ?
- Duty of care
- Breach of duty
- Damage caused
Negligence:
- Duty of care
three cases can be used to establish negligence; main case is Robinson
Negligence: Duty of care
Robinson:
- category of previously established liability
- can it be extended by anology
- new and novel use caparo
Caparo Criteria
Caparo Criteria
- Forseeable
- Proximity
- Fair just and reasonable
Caparo Criteria
Forseeability
Objective test that checks that the reasonable person could forsee damage occuring
Kent v Griffiths: was forseeable
Caparo Criteria
Proximity
the relationship between the defendant and the claimant must be close in time, space or relationship
Bourhill v Young: not sufficent
McLoughlin v O’Brien: there was sufficent proximate
Caparo Criteria
Fair just and reasonable
Hill: was not fair to impose duty
Robinson: was fair to impose
Negligence
Breach of duty
Blyth: A person will have breached their duty if they fall below the strandards of the reasonable person
* -Wells v Cooper: ordinary person preforming a task reasonably competently
* Nettleship v Weston: learners- same as ordinary perosn
* professional: Held to the profession as whole - another person agrees with conduct- Bolithio: method used must be based on logic and defensible
* Mullins v Richards: The standard expected is that of the reasonable young person/ child
Negligence
Damage
Breach must have caused damage
* Factual causation (Barnet)
* Legal causation only disscussed if nessecary
-Hughes v Lord Avocate: A defendant can be liable if the type of injury was foreseeable, even though the precise way in which it happened was not
-Smith v Leech Brain: If the type of damage is reasonably foreseeable, but it is much more serious because of a pre-existing condition, the defendant can still be liable for all consequences
* The Wagon Mound If the type of damage is reasonably foreseeable, but it is much more serious because of a pre-existing condition, the defendant can still be liable for all consequences
Negligence defence
Contributorty negligence
Case
Law Reform (Contributory Negligence) Act 1945:
* claimant was a % responsible for the damage suffered
* % can be taken from damages awarded to C
Negligence defense
Contributory negligence
1st test
The claimant failed to take proper care in the circumstances for their own safety
* Gough v Thorne : All circumstances are considered, including the age of the claimant
Negligence defense
Contributory negligence
2nd test
That failure to take care was a contributory cause of the damage suffered
* Froom v Butcher: failiure to wear seatbelt is contributory cause (20%)
* O’conell v Jackson: Failiure to wear a helmet (15%)
* Stapely v Gypsum mines: fsiliure to follow orders
Negligence defense
Consent (volenti non fit injuria)
Full defense if successful claimant will recieve no damages
Negligence defense
Consent (volenti non fit injuria)
1st test
The claimant had knowledge of the precise risk involved
* Stermer v Lawson: claimant must have knowledg of the precise risk, it is not enough that they knew of the risk
Negligence defense
Consent (Volenti Non Fit Injuria )
2nd/3rd test
- Exercise free choice by the claimant
* Smith v Baker: The claimant must have had a free choice in accepting the risk of injury - A voluntary acceptance of the risk
* Smith v Baker: An assumption of risk must be freely taken and the claimant must voluntarily undertake the risk of harm
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Remdies
two types of compensatory damages that can be awareded
* General damges
* Special damages
Remedies
Special damages
- Also know as pecuniary losses
- can be easily calculated
Remedies
General damages
- Know as non-pecuniary losses
- Can cover a number of things
1. pain and suffering
2. loss of amenity
3. future loss of earnings
4. future medical expenses
