Negligence Flashcards
what is a tort?
civil wrong and covers situations where damage has been incurred but there is no pre-existing contractual relationship
what conditions must have been satisfied for a tort to have occured
- there must be an act or omission by the defendant
- the act or omission must have directly caused damage or injury to the claimant
- the courts must be able to establish a legal liability as a result of the damage
- Due to the damage, the defendant must owe the claimant a remedy
what is negligence
breach of a legal duty to take care
In order for an action in negligence to succeed, the claimant must prove the following:
- The claimant must prove that the defendant had a duty to take care to not cause harm
- The claimant must prove that the defendant did not take reasonable care
-It must also be proved that because of the defendant’s breach the claimant suffered loss or damage
duty of care
there is a duty to take reasonable care not to cause foreseeable harm to others
ratio decidendi
manufacturer owes a duty of care to the customer
what are the limits of the duty of care?
- policy
- foreseeability
- fairness
- proximity
Breach of duty of care
The second element that a claimant must prove in an action for negligence is that there was a breach of the duty of care by the defendant
Res ipsa loquitur (‘the facts speak for themselves’)
This rule applies where:
- the cause of damage is not known
- the damage would not have arisen without the defendant’s lack of care
- the thing which caused the damage was under the management and control of the defendant
principles for standard of care:
- particular skill
- lack of skill
- lack of hindsight
- body of opinion
- advantage and risk
- emergency
- vulnerability
Proof of causation - the “but for test”
This is a question of fact
Would the damage have occurred “but for” the negligent act?
The remoteness of damage will be considered by the court
the courts will usually award damages for the following losses:
- loss as a result of personal injury
- damage to property
- financial losses directly connected to personal injury.
Pure financial loss are very rarely recoverable
3 elements of the tort of negligence are:
- duty of care
- breach of duty of care
- resultant loss
Professional advice and negligent misstatement
no difference between liability of negligent misstatement and negligent acts as they can suffer the same amount
- however with misstatement this can reach more people and lead to more damage
if there is a special relationship between parties, the three elements must be considered
- was the defendant in the business of giving professional advice
- was the advice given in a business contect rather than a social context?
- did the defendant know that the claimant in particular would rely on the advice?
true or false?
A special relationship only needs to be present if there are PURELY financial losses.
TRUE
A special relationship only needs to be present if there are PURELY financial losses. For financial losses linked to physical harm, it is not a requirement.
Companies act liability - S.507
It is an offence for an auditor to recklessly cause an auditor’s report to contain misleading or false information, punishable by a fine.
Companies act liability - S.532
Any provision exempting auditors from, or indemnifying them against, liability for negligence in relation to providing audited accounts will be void.
Companies act liability - S.534
A company may enter into a liability limitation agreement with an auditor, limiting their liability for negligence in the course of auditing accounts.
- approved by members
- no more than one year
- limits liability to an amount that is just and reasonable in all circumstances
Calculation of damages for negligence in tort
Damages for negligence are calculated to put the claimant back in the position they would be in if the negligent act had never happened.
Type of damage
Compensation will only be awarded to the claimant if the type of loss they have suffered is a reasonably foreseeable consequence of the defendant’s negligence.
Extent of loss
If the court feels the type of loss the claimant has suffered is foreseeable, they will award damages for all losses of that nature even if the extent of the loss is more severe than would have been reasonably foreseeable.
Defences - Contributory negligence
Where the defendant can show that the damage or loss suffered was partly due to the claimant’s fault, damages will be reduced in proportion to his degree of fault
Defences - Volenti non fit injuria (literally ‘to a willing person no injury is done’)
the claimant freely agrees to the risk of loss
exclusion clause
if term within the contract between defendant and claimant
what is vicarious liability?
Vicarious liability arises when one person is held liable for another’s actions
obiter dicta
everyone owes a duty of care to their neighbour
The neighbour principle was established by the landmark case:
Donoghue vs stevenson
three essential elements for a negligence claim to be successful
- duty of care
- breach of duty
- consequential damage
Name 4 of the matters to be taken into account by the court in considering cases of professional negligence
- purpose for which statement was created
- relationship between the parties
- size of any class to which the recipient belonged
- state of knowledge of the maker
- whether the professional assumed responsibility
