Negligence Flashcards
Negligence
Breach of the expected standard of care where there is a requirement or duty for care, causing loss.
Foreseeability principle
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Neighbour test
Persons who are so closely and directly affected by my act that I ought reasonably to have them in mind when I act.
Element 1 of Negligence
The defendant owed the plaintiff a duty of care:
- The duty is owed to persons who are reasonably foreseen as likely to be harmed if reasonable care is not take.
Element 2 of Negligence
The defendant breached that duty by failing to exercise the degree of care which the courts deems reasonable in the circumstances.
Element 3 of Negligence
The plaintiff has suffered harm.
Element 4 of Negligence
It was the defendant’s breach which caused the harm to the plaintiff.
Element 5 of Negligence
Harm was a proximate consequence of the breach.
Element 6 of Negligence
What is the calculation of monetary compensation payable to the person harmed (if the other steps are met).
Relationship
Is the plaintiff a person who it is reasonably foreseeable may be harmed if care is not taken?
Proximity
- Temporal proximity (time): is the plaintiff too far removed in time from the negligent conduct?
- Physical proximity (place): Not foreseeable if the plaintiff is trying to ‘piggy back’ on the duty of care owed to another person.
Policy considerations
- Impact on legal duties and society.
- Economic efficiency
- Societal benefits
- Interference with public functions
- Floodgates argument
Reasonable persons test
The failure to do something a reasonable person would do, or doing something a reasonable person would not do, considering ordinary human behavior and expectations.
Standard of Judgement
There is no leniency for ignorance or stupidity. However, the defendant is judged based on the actions of a “reasonable” person, not an exceptional one (like “Superman”).
Expertise
Experts held to an expert standard only if:
- Hold themselves out as experts; and
- Undertake specialised activity.
Risk allocation
Test is applied in light of the circumstances:
1. Probability of harm
2. Gravity of risk
3. Special vulnerability
4. Expensive & practicable
5. Social value of activity
Res Ipsa Loquitor
“The thing speaks for it self”
When the circumstances surrounding an accident imply that the defendant’s negligence caused the harm, even without direct evidence.
Res Ipsa Loquitor terms
Draw inference of negligence from happening of event:
1. Is this the sort of thing that usually occurs when someone is negligent?
2. Is it reasonable to infer that the defendant is responsible?
The “But for” Test
Defendants conduct caused the Plaintiff’s harm IF the harm would have occurred BUT FOR the defendants conduct.
The “But for” Test Divisible Loss
Is it possible to seperate the causes of loss?
- event A caused loss X and event B caused distinct and severable loss, loss Y.
- Each defendant can be liable for loss caused by him/her.
The “But for” Test Indivisible Loss
Impossible to link particular actions to particular loss.
The “But for” Test Indivisible Loss application
Apply “But For” test to both causes if it can be done.
Do not apply “But For” test where:
- It would be unjust;
- Defendants have made it impossible for Plaintiff to prove which event causes the loss.
Breaking the chain of causation
An event occurs after the defendant’s negligent act, which intervenes and becomes the direct cause of the harm suffered by the plaintiff.
Intervening Event
Also known as a novus actus interveniens, effectively disconnects the defendant’s original action from the final outcome, relieving them of some or all liability.
