Negligence Flashcards
4 elements of negligence
- duty of care
- breach of duty
- causation
- defences
Caparo test for novel situations
- was harm to C reasonably foreseeable?
- proximity of relationship between C and D
- fair, just, and reasonable to impose a duty?
Liability for omissions: general rule + exceptions
General rule: no liability for omissions
Exceptions: duty not to make situation worse, if special relationship of control over the person
Standard of care
Reasonable person (objective test)
- if skilled, judged against person with that skill
- children: standard adjusted for age
Factors for whether D breached standard of care
- magnitude of risk
- cost + practicability of precautions
- D’s purpose (in public interest?)
- complied with common practice?
- current state of knowledge
Proving breach of duty if there’s no witness
Res ipsa loquitur if:
1. D must control the thing that caused the harm
2. accident must be such that it wouldn’t occur without negligence
3. cause of accident is unknown to C
OR: presumption D was negligent if convicted of criminal offence involving carelessness
Causation in fact
“but for” test, or D’s act must’ve “materially contributed” to harm if several causes
D’s contributions to damages if several Ds
If injury divisible: each D pays his proportion
If injury indivisible: C can claim from any/all Ds- D can then recover from other Ds their contribution
When do intervening acts break chain of causation?
3rd party’s action: breaks chain if was unforeseeable
C’s action: breaks chain if was entirely unreasonable
Remoteness test
Would reasonable person have foreseen that type of harm?
- “similar in type” rule: irrelevant that way of suffering injury was unforeseeable
- “egg shell skull” rule: extent of harm does not have to be foreseeable
Duty of care in pure economic loss: acquiring defective item
No duty if pure economic loss
- if item causes harm, D liable for injury, but not for buying replacement item
Duty of care in pure economic loss: no physical damage
No duty if caused by negligent actions
No duty if caused by negligent statements EXCEPT if special relationship
Test for special relationship creating duty of care for negligent statements
- D knew purpose for which advice needed
- D knew advice communicated to C
- D knew C likely to act on advice without independent inquiry
- C acted on advice to his detriment
- D was reasonable in relying on advice
Is consequential psychiatric harm recoverable?
Yes, all of it, including undiagnosed (eg. nightmares)
Definition of primary victim of pure psychiatric harm
Was in actual area of danger, or reasonably believed he was in danger
Duty of care to primary victim arises when…
Risk of physical harm foreseeable (not psychiatric!)
Definition of secondary victim of pure psychiatric harm
Witnessed injury to someone else, or feared for someone else’s safety
Test for duty of care to secondary victim (Alcock)
- psychiatric illness foreseeable in person of normal fortitude
- close relationship of love and affection with victim
- proximity in time and space (at accident/immediate aftermath)
- proximity of perception (see/hear accident/aftermath with own senses)
Employers’ duties to employees
- competent staff,
- adequate material,
- proper system of work and supervision,
- safe place of work
“competent staff” duty violated if…
employer knew/should’ve known about risk worker presents to others
If inherent defect in equipment, employee can sue employer if shows:
- 3rd party’s fault
- causation
Duty owed for stress at work if:
injury to health for stress was reasonably foreseeable:
- nature/extent of work,
- signs from employee at face value
Consent defence: D must show:
- C had full knowledge of nature + extent of risk,
- C willingly consented to accept risk of injury due to D’s negligence
NOT APPLICABLE TO MOTOR VEHICLES
Contributory negligence:
- C was careless,
- that carelessness contributed to C’s damage
No contribution of C acted reasonably in “agony of moment” caused by D
Contributory negligence seatbelts + helmets damages reduction rates
If injury could’ve been avoided: -25%
If injury could’ve been reduced: -15%
If no difference: 0%
Illegality defence
When C involved in illegal enterprise when injured- harm must’ve arisen directly out of illegal activity
Exclusion of liability- applies if:
- reasonable steps taken to notify C of exclusion before tort committed
- wording of notice must cover loss C suffered
CANNOT exclude liability for death/personal injury if UCTA or CRA applies
CAN disclaim liability for other damage, but only if disclaimer: “reasonable” under UCTA, or “fair” under CRA
Aim of tort damages
Restoring C to position as if tort hadn’t occurred
Non-pecuniary losses for personal injury include:
- pain and suffering (subjective)
- loss of amenity/enjoyment of life (objective)
Pecuniary losses for personal injury include:
- medical expenses
- pre-trial loss of earnings
- post-trial loss of earnings
- lost years (lost earnings due to shorter life)
- services C needs post-injury
- loss of earning capacity (if might make less post-trial)
Calculating post-trial loss of earnings
Gross annual income at trial (- tax) x period of loss + 0.25%
Eg. 30 000 x 30.25
Deductions from damages for pecuniary losses
DEDUCTED:
- state benefits
NOT DEDUCTED:
- insurance payments
- ill-health payments
- charitable payments
Damages on death (Law Reform (Miscellaneous Provisions) Act 1934)
Claims survive C, for benefit of C’s estate (can cover pecuniary + non-pecuniary losses until date of death)
Parasitic dependants’ claims under Fatal Accidents Act 1976
- loss of dependency
- damages for bereavement
- funeral expenses (if paid by dependants)
Loss of dependency claim criteria:
- must be listed dependant (spouse, child, parent…)
- must’ve actually been financially dependent on C (inheritance from C irrelevant!)
Damages for bereavement- who can claim?
- C’s spouse/CP
- C’s parents (if C was a minor),
- C’s cohabitant, if lived together for past 2 years as partners
Always a fixed sum of 15,120
