Negligence

Question 1

elements of negligence

Answer 1

• The defendant owed the claimant a duty of care;
• The defendant breached that duty; and
• The defendant’s breach caused damage to the claimant.

Question 2

3

novel duty situations.

Answer 2

In novel duty situations there is no previous authority establishing (or negating) the existence of a duty of care, so courts develop the law incrementally, by analogy to established authority. Cases
have determined that three criteria must be met for a duty of care to arise:
a. Foreseeability
The claimant must be a foreseeable victim. In other words, the defendant’s negligence must have created a foreseeable risk of harm to this claimant.
b. Proximity
There must be a relationship of sufficient proximity between
the claimant and the defendant. for example, the restrictions on duty of care in cases of pure economic loss and psychiatric harm without physical impact illustrate situations in which tehre may be a lack of proximity between the parties.
c. Fair, Just, and Reasonable
The court will also consider whether it is fair, just, and reasonable, in all the circumstances, to impose a duty of care.

Question 3

4

Omissions to Act

Answer 3

Generally, one does not have a legal duty to act. For example,one who sees a person in danger does not have a legal dutyto go to the rescue. Exceptions to this rule exist, however:
a. Special Relationship Between Parties
A special relationship between the parties (such as parentchild) may create a duty on the defendant to take care for the claimant. Defendant has assumed responsibility for the claimant’s wellbeing ( rise in contractual or employemnt situation)
b.** Control **
If the defendant exercises control over the claimant (such as a police officer placing someone under arrest), this may create a duty on the defendant to take care
c. Liability for Actions of Third Parties UnderDefendant’s Control or Responsibility
While a defendant generally does not owe a duty to exercisecontrol over a third party to prevent them from causing harm to the claimant, such a duty may arise when the defendant has control over the third party or has assumed responsibility for the third party’s actions. For example, parent have control over a yong child and are likely to owe a duty to take reasonable care to prevent the child from causing harm to others.
d. Rescue Situations
As noted above, there is generally no duty to act to carry out a rescue. In light of this principle, the courts have also held that a person who does act to carry out a rescue only owes a limited duty not to make the situation any worse. Created or adopted risk–an individual who seeks to carry out risk has the duty not to make the situation worse.

Question 4

Scope of Duty of Care

Answer 4

If the harm suffered by the claimant was not within the scope of the defendant’s duty of care, damages will not be recoverable even if the defendant owed the claimant a duty and acted negligently.

Question 5

3

BREACH OF DUTY

Answer 5

1、Standard of Care – Reasonable Person Test
2、assessing breach
3、Proving Breach

Question 6

3

Standard of Care – Reasonable Person Test

Answer 6

1. Once it has been established that the defendant owed the claimant a duty of care, the next step to consider is the standard of care the defendant is required to meet. The defendant is required to** take reasonable care**; that is, the standard of care to be expected of a reasonable person in the defendant’s position.
2. This standard is** objective and impersonal**. The defendant’s own personal characteristics, such as lack of knowledge and experience, are not taken into account.
3. the inexperience or other personal characteristics of the defendant is no excuse.

Question 7

3

Assessing Breach

Answer 7

In assessing whether the defendant’s conduct did fall below a reasonable standard of care, the court will balance two factors:
*The magnitude of the risk involved in the activity under-taken by the defendant; and
*The **practicability of taking precautions **to avoid that risk.
* Social utility of the act

Question 8

2

Magnitude of Risk

Answer 8

In assessing the magnitude of risk involved in the defendant’s activities, the court will ask the following questions: (1) how likely is it that harm will occur, and (2) how serious is the potential harm?

(1) Likelihood of Harm
If the defendant’s activity carried a very low risk of causing harm to the claimant, the claimant who is nevertheless injured by the activity may not be able to establish that the defendant fell below a reasonable standard of care. The claim would fail because the claimant could not establish breach of duty, despite having been injured by the defendant.

(2) Seriousness of Potential Harm
The greater the potential harm from the defendant’s activities, the more precautions the defendant is expected to take in order to meet the standard of reasonable care.So, for example, an activity might carry a low risk of harm occurring, but, if harm does occur, it is likely to be very serious. In those circumstances the defendant would be expected to take appropriate precautions.

Question 9

Practicability of Precautions

Answer 9

In assessing whether the defendant fell below a reasonable standard of care, the court will balance the practicability of taking precautions against the risk in question.

Question 10

Social Utility

Answer 10

When considering the precautions which the defendant
ought to have taken to meet the standard of reasonable
care, the court will also have regard to the social utility of the defendant’s conduct. So, for example, when a defendant is
acting in an emergency or rescue situation, they may be justi-fed in taking fewer safety precautions than would otherwise be required.

Question 11

5

ParticularTypes of Defendants

Answer 11

1.The standard of reasonable care does not depend on the skill and experience of the particular defendant.

2.The standard of reasonable care which the defendant must achieve is determined according to the task which the defendant is undertaking.

3.Under-Skilled Defendants
An under-skilled defendant cannot rely on their lack of skill to argue that they were not in breach of duty.

4.Skilled Defendants and Professionals
Defendants who exercise a particular skill or profession are required to meet the level of skill of a** reasonably competent member of that profession. The test used to determine whether the defendant fell below a reasonable standard of care is whether the defendant acted in accordance with a responsible body of professional opinion

note a trainee proessional is held to the same professional standard as a veteran professional.

5.Children
There is no minimum age for liability in tort. However, the defendant’s age is relevant because the standard of reasonable care is the standard of care to be expected of a reasonable person in the defendant’s position.Thus, a child defendant is expected to meet** the standard of a reasonable child of the same age as the defendant. **The standard of care remains objective.

Question 12

Proving Breach of Duty

Answer 12

a.Res Ipsa Loquitur
b.Criminal Convictions Involving Negligence

Question 13

2

a.Res Ipsa Loquitur

Answer 13

1. Usually, the claimant will produce evidence (such as witness-es) to explain how the incident happened. The court can then assess** the level of skill and care** exercised by the defendant.
2. However, in some cases, there may be an **absence of any explanation **of how the incident happened. In cases of this kind the court may be prepared to infer a breach of duty from the circumstances of the accident. The doctrine of res ipsa loquitur (‘the thing speaks for itself’) may apply.There are three conditions which must be satisfed for res ipsa loquitur to apply:
   *There must be an absence of any explanation for how the incident occurred;
   *The thing which caused the accident must have been under the control of the defendant; and
   *The accident must be such as would not normally happen if proper care had been taken.–unlikely to happen but for negligence.

Res Ipsa Loquitur can be rebutted.

Question 14

b.Criminal Convictions Involving Negligence

Answer 14

If a person has been convicted of a criminal offence involving negligence, that conviction is admissible as evidence in any civil claim arising from the incident.

Question 15

CAUSATION OF DAMAGE IN
NEGLIGENCE

Answer 15

1. To have a successful claim, the claimant must show that the defendant’s breach of duty caused loss. Carelessness by the defendant without loss to the claimant does not give rise to any claim.
2. Establishing Causal Link Between Claimant’s Loss and Defendant’s Breach

Question 16

2

Establishing Causal Link Between
Claimant’s Loss and Defendant’s Breach

Answer 16

1. Causation in fact: The claimant must prove that, ‘but for’ the defendant’s breach of duty, the claimant would not
   have sufered the loss.
2. A modifed test applies when the claimant’s injury results from a number of diferent causes acting together
   *No new intervening acts: There must be no new acts which intervene between the defendant’s breach of duty and the claimant’s loss (
   *Damage not too remote: The loss suffered by the claimant must be a reasonably foreseeable consequence of the defendant’s breach of duty.The latter two issues are sometimes referred to under the
   heading of** ‘causation in law**’ to distinguish them from the issues covered by causation in fact.

Question 17

Causation in Fact: ‘But For’Test

Answer 17

The test is applied by asking: Can it be said that, ‘but for’ the defendant’s breach of duty, the loss would not have happened?

Question 18

Modifed Test for Causation in Fact:
Material Contribution

Answer 18

1. In contrast to when the claimant is faced with two (or more) alternative possible causes of his loss , a different possibility is that one injury may result from a number of diferent causes acting together.
2. Rather than being subject to the ‘but for’ test, the claimant is only required to prove that the defendant’s breach of duty made a material contribution to the claimant’s loss.

Exam Tip
It is important to analyse the facts carefully to determine what events caused the claimant’s loss, since diferent tests apply. Is this a situation of alternative causes, towhich the standard ‘but for’ test applies, requiring theclaimant to prove, on the balance of probabilities, that the defendant’s breach was the cause of the loss? Or can the claimant show that the injury has resulted from a number of different causes acting together, so that the claimant can succeed by establishing material contribution?
Whether the claimant succeeds or fails may often depend on how the facts involving causation are interpreted.

Question 19

2

Divisible and Indivisible Injuries

Answer 19

1.When an injury is divisible, damages can be apportioned between the defendants according to** the share of injury **which each of them caused. This means that the claimant can only recover a portion of their damages from each defendant, and so must sue them all if the claimant is to recover in full.

2.When an injury is not divisible, the claimant is entitled to recover his damages in full from either of the defendants. (Of course, the claimant can only recover his damages once).

Question 20

2

Contribution Between Tortfeasors

Answer 20

1.What happens when two (or more) defendants are liable to the claimant in respect of the same damage** in an indivisible injury case** and the claimant recovers damages in full from
one of the defendants? By statute, the paying defendant may recover from the other(s) a contribution to the damages payable. The contribution is to be assessed in such amount as
the court considers just and equitable having regard to each defendant’s responsibility for the damage.

2. In contrast to the situation above when two (or more) causes act together to bring about a single injury, the situation here is that the claimant suffers one single injury and then later suffers a second separate injury (successive injury) which impacts on the first one. The defendant in the second accident is only liable to the extent that their negligence made the claimant’s damage** worse** than it already was.

Question 21

2

New Intervening Acts or Events – Breaking
the Chain of Causation

Answer 21

1. When a new act has intervened between the defendant’s original negligence and the claimant’s ultimate injury, this new intervening act is said to break the chain of causation between the defendant’s initial negligence and the claimant’s ultimate loss, so that the defendant is not liable for that further loss.**
2. An intervening act by a third party will break the chain of
   causation only if it was not reasonably foreseeable. So, the chain of causation is unlikely to be broken by an action which the defendant ought reasonably to have foreseen as a likely
   consequence of their negligence.

Question 22

Intervening Act by Claimant

Answer 22

A new intervening act can be an act of the claimant rather than the act of a third party. For the claimant’s own actions to break the chain of causation, the claimant must have acted entirely unreasonably.

Question 23

Intervening Natural Event

Answer 23

A natural event may break the chain of causation and cut of
the defendant’s liability for further damage.

Question 24

3

Remoteness of Damage

Answer 24

1. The final aspect of causation of damage is remoteness. Even if it can be said that the claimant’s damage was, as a matter of fact, caused by the defendant’s negligence, the defendant will not be liable if that damage is too remote a consequence of the defendant’s act.
2. Basic Rule: Reasonable Foreseeability
   The test for remoteness of damage is one of reasonable foreseeability. The court must ask: Was the claimant’s dam-age a reasonably foreseeable result of the defendant’s negligence? If the answer is no, the damage was not reasonably foreseeable, and the defendant is not liable for it.
3. Exceptions: ‘Egg Shell Skull’ and ‘Similar in Type’ Rules
   There are two exceptions to the foreseeability rule that allow for damage which may be unforeseeable to be recovered from the defendant: (1) the egg shell skull rule and (2) the similar in type rule.

Question 25

Eggshell Skull Rule

Answer 25

1.The egg shell skull rule describes the situation in which the claimant suffers from a pre-existing condition (such as a very thin skull) which causes the effect of the defendant’s negligence to be more extensive or severe than might have been reasonably foreseeable.
2.This is often referred to as the principle that ‘the defendant must take their victim as they fnd them’.

Question 26

Similar in Type Rule

Answer 26

The similar in type rule describes a situation in which the claimant suffers the type of harm which would be reasonably foreseeable, but the manner in which it occurs is unforeseeable.

Question 27

4

DEFENCES TO NEGLIGENCE

Answer 27

1.contributory negligence
2. VoluntaryAssumption of Risk (Volenti Non Fit Injuria)
3. Exclusion of Liability
4. Illegality

Question 28

4

Contributory Negligence

Answer 28

1. Definition
   *A failure by the claimant to take reasonable care for their own safety;
   *Which contributes to the harm suffered by the claimant.
2. Need Not Be a Cause of the Accident
   The claimant’s failure to take care need not have contributed to the happening of the accident; it only needs to contribute to the damage suffered.
3. Exam Tip
   When two (or more) people have been negligent and each has contributed to the harm suffered by the claimant, it is not correct to use the term ‘contributory negligence’ to describe this situation. ‘Contributory negligence’ is only applicable when referring to the claimant’s own failure to take reasonable care. The correct approach when a defendant asserts that a third party is also responsible for the claimant’s harm is to consider the rules for contribution between tortfeasors
4. Consequences of Contributory Negligence
   Under the Law Reform (Contributory Negligence) Act 1945, a finding of contributory negligence does not defeat the claim entirely; rather, damages are to be reduced to such extent as the court considers just and equitable, having regard to the claimant’s share in responsibility for the damage.

Question 29

3

VoluntaryAssumption of Risk (Volenti Non Fit Injuria)

Answer 29

1. It is a complete defence to a claim in negligence for the defendant to show that the claimant voluntarily assumed the risk of the defendant’s negligence.
2. For the defence to apply:
   *The claimant must have had full knowledge of the risk; and
   *The claimant must have freely and voluntarily assumed the risk.
3. Note that statute prevents the defence of voluntary assumption of risk from applying to passengers in road traffic accidents.

Question 30

2

Exclusion of Liability

Answer 30

1.A defendant may seek to exclude liability by displaying a notice to that effect.
2. such exclusions of liability are subject to** statutory controls **which provide that, when the defendant acts in the course of a business:
*Liability for death or personal injury arising from negligence can never be excluded; and
*Liability for other damage caused by negligence can only be excluded if the exclusion satisfes a requirement of reasonableness or fairness.

Question 31

Illegality

Answer 31

1. The defence of illegality is a complete defence. It prevents a claimant from basing a claim on their own illegal act. So, the claimant cannot recover damages for harm suffered whilst taking part in criminal activity.
2. the defence is based on public policy, and courts usually will not allow the defence if the claimant is guilty of only minor criminal activity that does not signifcantly contribute to the circumstances of their injury.

Question 32

negligence-pure economic loss
elements of successful claim

Answer 32

*Duty of care
*Breach of duty; and
*Causation of damage.

Question 33

3

definition-what is pure economic loss

Answer 33

*Damage to property which does not belong to the claimant;
*The cost of damage suffered by a defective product which is acquired by the claimant; and
*Financial loss which does not flow from damage to the claimant’s person or property.

Question 34

2

general rule for pure economic loss

Answer 34

1. The general rule is that pure economic loss is not recoverable in an action in negligence. No duty of care is owed to avoid such loss.
2. However, as an exception to this rule, pure economic loss caused by negligent statements may be recoverable when there is a special relationship between defendant and claimant

Question 35

pure economic loss v.consequential economic loss

Answer 35

In contrast to pure economic loss, the ordinary rules of negli-gence apply to consequential economic loss. In other words, the duty of care owed in respect of the physical injury or damage also extends to economic loss which is consequential on such physical injury or damage.

note. anticipated profits lose will not be counted as consequential economic loss

Question 36

PURE ECONOMIC LOSS CAUSED BY NEGLIGENT ACTS

Answer 36

1. Damage to Property Not Belonging to Claimant
2. Cost of Damage Suffered by Defective
   Product Acquired by Claimant

Question 37

Damage to Property Not Belonging to Claimant

Answer 37

A claimant may suffer loss when property belonging to some-one else is damaged. This damage generally is not recoverable.
EXAMPLE
Claimant owns a factory which is supplied with electricity via a cable belonging to an electricity supply company. Defendant negligently damages the supply cable, with the result that Claimant’s factory is without electricity. The factory is
forced to close for three days. Claimant suffers increased
costs and expenses and loss of proft as a result.Claimant has suffered pure economic loss. This loss is not recoverable from Defendant because Defendant does not owe Claimant a duty of care in respect of this loss.

Question 38

Cost of Damage Suffered by Defective
Product Acquired by Claimant

Answer 38

When a claimant acquires a product which is defective, the cost of damage to the product itself is regarded as pure eco-nomic loss – which is not recoverable in tort.

Exam Tip
It is important to distinguish the situation where a defective product causes damage to other property. For example, if a defective oven installed in the claimant’s kitchen overheats and causes a fire that destroys both
the oven itself and the furniture in the claimant’s kitchen, the claimant cannot recover from the oven manufacturer the cost of damage to the oven itself but can recover the cost of damage to the kitchen furniture, because that is not pure economic loss.

Question 39

3

PURE ECONOMIC LOSS CAUSED BY NEGLIGENT STATEMENTS

Answer 39

1.contract remedy
Advice may be provided to the claimant pursuant to a contract with the defendant. In that case, if the defendant has acted in breach of contract (for example, in breach of terms requiring advice services to be provided with reasonable care and skill), the claimant should be able to recover their fnancial loss as damages for breach of contract.
2.Generally no remedy in tort
pure economic loss is not recoverable in an action in negligence as a general rule.
3.Special Relationship Exception

Question 40

4

Special Relationship Exception for negligent misstatement

Answer 40

1. The advice is required for a purpose which is made
   known to the defendant;
2. The defendant knows that: (1) the advice will be communicated to the claimant in order to be used for that purpose, and (2) the claimant is likely to rely on the advice without independent enquiry
3. The claimant must actually have relied on the advice; and
4. It must have been reasonable for the claimant to do so.

Question 41

negligence-psychiatric harm definition

Answer 41

Pure psychiatric harm refers to harm which is caused to the claimant without any physical impact. This may be caused by the shock of being placed** in danger **by the defendant’s actions, or by the shock of witnessing harm to others caused by the defendant’s actions. The harm may be:
*A psychiatric condition caused by shock; or
*A shock-induced physical condition (such as a miscarriage).

Question 42

elements of a sucessful claim of psychiatric harm

Answer 42

1.duty of care
2.breach of duty
3.causation

Question 43

psychiatric harm vs. consequential psychiatric harm

Answer 43

Psychiatric harm which is consequential on physical injury does not have special rules for recovery. The ordinary rules of negligence apply – the duty of care owed in respect of physical injury also extends to consequential psychiatric harm.

EXAMPLE
A boy standing by a road witnesses a crash, caused by the negligence of a car driver. The boy is so close to the scene that a piece of debris from one of the vehicles strikes him and causes a minor injury to his leg. He is so shocked that he develops post traumatic stress disorder. The car driv-
er owes the boy a duty of care (which he has breached, causing the boy injury). The duty extends to both the phys-ical injury and the consequential psychiatric harm. Even if psychiatric harm may not have been foreseeable as a result of such a minor injury, so long as some personal injury was foreseeable, the defendant is liable, since the defendant
must take his victim as he fnds him.

Question 44

types of victims for psychiatric harm

Answer 44

1.; A primary victim is someone who is in the actual area of dan-ger created by the defendant’s negligent act (or who reasonably believes themselves to be).
2.Everyone else who is affected by the defendant’s negligent act, but is outside the actual area of danger, is a secondary victim. Secondary victims are typically **bystanders **who witness the consequences of the defendant’s negligence without themselves being in danger.

Question 45

Duty of Care Rules for PrimaryVictims

Answer 45

Primary victims are owed a duty of care in relation to psychiatric harm without physical impact provided that there was a foreseeable risk of physical injury to them. In other words, a duty of care arises because they were at foreseeable risk of physical injury, even though such physical injury did not in fact occur. In the case of primary victims, there is no require-ment that psychiatric harm be foreseeable as a result of the defendant’s actions.

Question 46

4

Duty of Care Rules for SecondaryVictims

Answer 46

1. It must be reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer a psychiatric illness in the circumstances;
2. The secondary victim must have had close ties of** love and affection** with the person endangered by the defen-dant’s negligence (such as mother and child);
3. The secondary victim must have been present at the accident or its immediate aftermath (often referred to as proximity to the accident in time and space); and
4. The secondary victim must have witnessed events with their own unaided senses.

Question 47

3

limits on duty of care for psychiatric harm

Answer 47

1. For both primary and secondary victims, the duty of care in relation to pure psychiatric harm is limited in that the psychiatric harm must amount to a medically recognised psychiatric condition (or shock-induced physical condition). For exam-ple, post-traumatic stress disorder is a medically recognised condition. Other examples would be medically diagnosed depressive disorder or anxiety disorder. By contrast, simple anxiety, alarm or distress, is not. **

Remember that when there is physical injury to the claimant with consequential psychiatric harm, this lim-itation does not apply. A victim suffering from physical injuries and consequential effects, such as nightmares and anxiety, should recover damage for those effects in
the usual way.
2. sudden shock
the law draws a distinction between harm caused by a sudden shocking event and harm caused by exposure to shock over a longer period of time.

(1) For secondary victims, no duty of care is owed** unless the harm is caused by a sudden shocking event**. So when a secondary victim suffers such harm gradually rather than suddenly (for example, as a result of watching a relative injured by the defendant’s negligence suffer in hospital over a period of time) no duty of care is owed.

(2) For primary victims, recent case law suggests that the requirement of ‘sudden shock’ does not always apply. These cases involved a baby born disabled as a result of negligent medical treatment during labour, when the mother’s reaction caused her to sudfer a recognised psychiatric illness. Such a mother is considered by the law to be a primary victim because, before the birth, the baby was part of her, so the mother was exposed to the danger created by the defendant’s negligence.The events in such cases cannot be described as a ‘sudden’ shock because the harm to the mother was caused over an extended period, both during the birth and in the hours afterwards. Nevertheless, the cases held that the mother was owed a duty of care in respect of her pure psychiatric harm.

3. Note that if an employee suffers a psychiatric illness resulting from stress at work over a prolonged period, a duty of care may be owed by the employer. The requirement for sudden shock is not relevant here.