Negligence Flashcards
What are the requirements to impose a novel duty situation?
The court will imply a duty in a non-established duty situaiton, only where:
- the claimant is a foreseeable claimant (defendant’s conduct created a foreseeable risk of harm)
- There is a relationship of **sufficient proximity **between D and C
- It is fair, just and reasonable to impose the duty on the defendant
What is Res Ipsa Loquitor?
Its a doctrine which implies that a duty owed was breached in situations where there is no evidence of how a person’s harm came to be. There are 3 parts:
1) The accident would not normally happen without negligence
2) There is no explanation for how the accident occurred, and
3) The thing that caused the accident is under the control of the defendant
Eg. Lift shaft falls and defendant should have been monitoring it, but no one knows how
If there are a number of different reasons why the injury was caused, what is the causation test?
The claimant would need ot show that the defendant’s breach materially contributed to the claimant’s harm
When does an intervening act break the chain of causation?
When the intervening act was unforeseeable
Eg. Doctor’s gross negligence
A claimant’s own actions can break the chain of causation it it was unreasonable
What is the defence of voluntary assumption of risk?
The claimant has full knowledge of the risk and freely and voluntarily assumes the risk
What is the defence of illegality?
Where a defendant injures the claimant while the claimant was undertaking criminal activity.
Illegality is a complete defence. The illegal activity cannot be minor
What is pure economic loss?
1) Damage to property which does not belong to the claimant (eg a car you borrowed)
2) The cost of **damage suffered by a defective product **which is acquired by the claimant
3) Financial loss which does not flow from damage to the claimant’s person or property
What is consequential economic loss?
Loss that is caused as a consequence of damage to a defective product, person’s property etc.
Ie a negligently manufactured fridge which breaks would not be recoverable, but meat which was in the friedge and got spoiled would.
Is pure economic loss from a negligent mistatement recoverable?
pure economic loss can be recovered if they arise from negligent mistatements by the defendant, and:
- the Defendant knew the claimant was likely to rely on their advice without independent enquiry
- The advise is required for a purpose which the defendant is made aware of
Eg. Claimant asks her broker for financial advice, the broker negligently makes a mistatement, and the claimant relies on the statement and suffers financial loss
What is pure psychiatric harm?
Psychiatric harm that is not accompanied by any physical impact (ie shock from seeing something happen)
What is consequential psychiatric loss and is it recoverable?
Where a claimant suffers psychiatric harm along with physical injury, the psychiatric harm is consequential psychiatric harm and ordinary rules for recovery for negligence apply.
Eg. a claimant hit by a car develops anxiety and PTSD = consequential psychiatric harm.
What is a primary victim and when can they recover psychiatric harm?
A primary victim must be in the actual area of danger created by the defendant. ‘Near miss’ situation
They must have suffered a medically recognised psychiatric condition
What is a secondary victim and when can they recover psychiatric harm?
Secondary victim is outside the actual area of danger.
A secondary victim must establish the following to claim for psychiatric harm:
1) They were present at the accident scene or in its **immediate aftermath **
2) Sudden shock
3) Close ties with the person endangered by the defendant’s negligence
4) That the psychiatric harm was foreseeable
5) They have suffered a medically recognised psychiatric condition
