Negligence Flashcards
What is a tort?
A civil wrong where damage has been incurred but where there is no pre-existing contractual relationship
What is the purpose of damages?
To put the claimant in the position they would have been in had the event not occurred - cannot be too remote
What is the limitation period to bring an action in tort?
6 years from suffering the damage
3 years for personal injury
What is looked for in a tort of negligence?
Duty of care owed
Duty of care breached
Damage resulted
Damage not too remote
What happened in the case of Donoghue v Stevenson?
Purchased a bottle of ginger beer
Found a decomposing snail in it - got ill
Manufacturer said no duty of care as no contract
Ruled that everyone has a duty of care to their neighbour
What tests are done to see if there is a duty of care?
Reasonably foreseeable
Proximity
Fair, just and reasonable
Public policy
Who shows if there is a breach of duty of care?
Claimant
When does Res ipsa loquitur apply?
Cause of damage not known
Damage would not have arisen without defendant’s lack of care
Thing which caused damage was under management and control of defendant
Defendant must prove not negligence
What is the standard of care required?
A reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs
What tests have been developed to test the standard of care?
Particular skill
Lack of skill not relevant
No hindsight
Professional opinion supports approach
Advantage and risk reasonably balanced
Emergency
Vulnerability
What is the proof of causation of a breach of care?
the but for test - would the damage have occurred if the negligent act was not done
When do/don’t auditors owe a duty of care in respect of annual acounts?
Do - knowing third party identity
knowing how the accounts are used
third party will be relying on accounts
Accounts used in a takeover
Don’t - accounts are used for purpose not intended without auditor
knowledge
What are the factors which the court consider in negligent misstatement?
Purpose which statement is made and communicated
Relationship between prof, recipient, 3rd party
Knowledge of professional
If prof could be said to have assumed responsibility to the claimant
Size of any class recipient belonged in
Extent of reliance, was it foreseeable
Fair and equitable to impose a duty of care
When does an auditor commit an offence under Companies Act 2006?
Recklessly causes a report to contain misleading/false matters of a material extent
Punishable by fine
What is contributory negligence?
When the defendant can show that the damage or loss suffered was partly the claimant’s fault.
Damages awarded to claimant reduced in proportion to his degree of fault
