Negligence

Question 1

Negligence

Answer 1

Breach of the expected standard of care where there is a requirement or duty for care, causing loss.

Question 2

Foreseeability principle

Answer 2

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Question 3

Neighbour test

Answer 3

Persons who are so closely and directly affected by my act that I ought reasonably to have them in mind when I act.

Question 4

Element 1 of Negligence

Answer 4

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.

Question 5

Element 2 of Negligence

Answer 5

The defendant breached that duty by failing to exercise the degree of care which the courts deems reasonable in the circumstances.

Question 6

Element 3 of Negligence

Answer 6

The plaintiff has suffered harm.

Question 7

Element 4 of Negligence

Answer 7

It was the defendant’s breach which caused the harm to the plaintiff.

Question 8

Element 5 of Negligence

Answer 8

Harm was a proximate consequence of the breach.

Question 9

Element 6 of Negligence

Answer 9

What is the calculation of monetary compensation payable to the person harmed (if the other steps are met).

Question 10

Relationship

Answer 10

Is the plaintiff a person who it is reasonably foreseeable may be harmed if care is not taken?

Question 11

Proximity

Answer 11

1. Temporal proximity (time): is the plaintiff too far removed in time from the negligent conduct?
2. Physical proximity (place): Not foreseeable if the plaintiff is trying to ‘piggy back’ on the duty of care owed to another person.

Question 12

Policy considerations

Answer 12

• Impact on legal duties and society.
• Economic efficiency
• Societal benefits
• Interference with public functions
• Floodgates argument

Question 13

Reasonable persons test

Answer 13

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.

Question 14

Standard of Judgement

Answer 14

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”).

Question 15

Expertise

Answer 15

Experts held to an expert standard only if:
- Hold themselves out as experts; and
- Undertake specialised activity.

Question 16

Risk allocation

Answer 16

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

Question 17

Res Ipsa Loquitor

Answer 17

“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.

Question 18

Res Ipsa Loquitor terms

Answer 18

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?

Question 19

The “But for” Test

Answer 19

Defendants conduct caused the Plaintiff’s harm IF the harm would have occurred BUT FOR the defendants conduct.

Question 20

The “But for” Test Divisible Loss

Answer 20

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.

Question 21

The “But for” Test Indivisible Loss

Answer 21

Impossible to link particular actions to particular loss.

Question 22

The “But for” Test Indivisible Loss application

Answer 22

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.

Question 23

Breaking the chain of causation

Answer 23

An event occurs after the defendant’s negligent act, which intervenes and becomes the direct cause of the harm suffered by the plaintiff.

Question 24

Intervening Event

Answer 24

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.

Question 25

Damages - remoteness and foreseeability

Answer 25

Defendant only liable for the “type” or “kind” of damage that a reasonable person would foresee.

Question 26

Remoteness - Eggshell skull principle

Answer 26

Wrongdoer must take the victim as they find them, even if they have an “eggshell skull”.