Negligence

Question 1

What is the Tort of Negligence?

Answer 1

A failure to exercise Reasonable Care and Skill in performing a specific Duty, consequently causing harm to another Party.

Question 2

What are the Elements of the Tort of Negligence?

Answer 2

1. Duty of Care: The Defendant owed the Claimant a Duty of Care.
2. Breach: The Defendant violated the Duty of Care.
3. Loss: The Claimant suffered a legally-recognised Loss.
4. Casuation: The Claimant’s Loss was caused by the Defendant’s Breach.
5. Remoteness: The Claimant’s Loss was a reasonable foreseeable consequence of the Defendant’s Breach.

Question 3

How is the Existence of a Duty of Care determined?

Answer 3

According to what the Parties’ conduct would reasonably suggest, given matters of fact, fairness, and public policy.

Question 4

What are the Three Tests for Determining the Existence of a Duty of Care?

Answer 4

• The Threefold Test.
• The Incremental Test.
• The Assumption of Responsibility Test.

Question 5

What is the Elements of the Threefold Test?

Answer 5

• Forseeability: The Claimant’s loss was a reasonably foreseeable consequence of the Defendant’s conduct.
• Proximity: The Claimant-Defendant relationship was one of sufficient Proximity.
• Public Policy: It is fair, just, and reasonable to impose a duty of care between the Parties.

Applied Objectively.

The Threefold Test is the starting point for unprecedent Cases.

In determining the Public Policy criterion, the Court will consider its decision’s social, political, and economic ramifications on society. Considerations include:

• Insurance.
• Floodgates.
• Deterrence.
• Crushing liability.
• Defensive practices.
• Maintenance of high standards.

Question 6

In the Threefold Test, what constitutes Sufficient Proximity?

Answer 6

A measure of control over, and responsibility for, the situation giving rise to the Loss.

Question 7

In the Threefold Test, when is it Unnecessary to establish the ‘Public Policy’ criterion?

Answer 7

When there is a demonstrable Voluntary Assumption of Responsibility by the Defendant.

Question 8

What constitutes a Voluntary Assumption of Responsibility?

Answer 8

• A conscious, considered, or deliberate decision by the Defendant;
• To assume a particular duty vis-à-vis the Claimant.

Applied Objectively.

Question 9

What is the Incremental Test?

Answer 9

An adjunctive test that mandates new duties in Negligence be developed:

• Incrementally; and
• By analogy with established categories.

This is less of a Test, and more of a Rule.

Question 10

What is the Assumption of Responsibility Test?

Answer 10

A Test of whether:

• Voluntary Assumption of Responsibility:
  • The Defendant Voluntarily Assumed Responsibility for what he said and did vis-à-vis the Claimant; or
  • Is treated by the Law as having done so.
• Reliance: The Claimant reasonably relied on the Defendant’s Assumption.

Applied Objectively.

This is most relevant in Cases of Negligent Misstatement or Professional Negligence, specifically as a more precise form of duty analysis, in recognition of the unique nature of such reliance-based relationships.

Question 11

Can the Defendant’s Omissions give rise to a Duty of Care?

Answer 11

Yes, but only if the Defendant:

• Is subject to a Stautory Duty.
• Is subject to a Contractual Duty.
• Has created a dangerous situation.
• Has a high degree of control over the Claimant.
• Has Voluntarily Assumed Responsibility for the Claimant’s welfare.

Question 12

Why is a Public Body less likely to Owe a Duty of Care under the Threefold Test?

Answer 12

• Merely having the ability to do something does not compel performance for a Public Body.
• The Courts are reluctant to create new Duties in Novel Cases because of the Public Policy implications.
• Statute-Empowered actions cannot beget liability in Negligence if performed properly, as that would undermine Parliamentary Sovereignty.

Question 13

How is the Scope of a Duty of Care determined?

Answer 13

By observing the:

• Factual matrix;
• Contractual terms;
• Parties’ relationship; and
• Responsibilites owed by the Parties to one another.

Question 14

What is the Defendant’s Standard of Care?

Answer 14

• A Reasonable Person in the Defendant’s position and circumstances; unless
• The Defendant possesses, or claims to possess, special expertise; in which case,
• The standard is that of a Responsible Body of Professionals.

This Test is based on the Act, not the Actor.

The minimum threshold for a Responsible Body of Professionals is an acceptable number of experts with sufficiently strong pedigrees. Solid figures are inapplicable.

Question 15

What is the Defendant’s Standard of Care if they are a Medical Professional acting in an Advisory Capacity?

Answer 15

• Patients must be informed of all Material Risks involving a Tretment and any reasonable alternatives.
• However, Professionals may withhold if:
  • Immediate Treatment is necessary; or
  • Disclosure would seriously harm the Patient’s health.

A Material Risk is one that:

• A Reasonable Person would find significant; or
• The Patient themselves would find significant, a fact the Professional is aware of.

Question 16

What are the Main Factors in determining whether a Breach has occured?

Answer 16

• Common Practice.
• Likliehood of Harm.
• Magnitude of Harm.
• Practicality of Precaution.
• Limitations of the State of the Art.
• Social Value of the Defendant’s Conduct.

Whether the Defendant is engaging in Sport is also relevant.

Question 17

Does acting in accordance with Common Practice constitute Reasonable Care and Skill?

Answer 17

Yes, but only if:

• The Body of Opinion informing the Practice has a defensible position on its cost-benefit.

Question 18

For the State of the Art Defence to apply, what must the Practitioner have been doing?

Answer 18

Undertake reasonable efforts to remain abreast of new, and especially mainstream, developments in their field.

Question 19

When will the Facts Speak for Themselves?

Res Ipsa Loquitur.

Answer 19

• The Accident would not normally occur without negligence.
• The Accident was under the Defendant’s control, or someone for whom they are responsible.
• The Accident’s cause is unknown to the Claimant and they have no direct evidence of the Defendant’s failure to exercise Reasonable Care and Skill.

Question 20

What is Factual Causation?

Answer 20

Whether, But For the Breach:

• The Loss would not have arisen;
• At that time;
• In that way.

On the Balance of Probabilities (> 50%).

If the Breach is a failure to advise on risk, the Claimant must prove they would have acted differently But For the poor counsel.

Question 21

What are the Alternative Tests of Factual Causation?

Used when the But For Test is highly difficult or impossible to apply.

Answer 21

• Loss of Chance Test.
• Material Contribution Test.
• Material Increase in Risk Test.

In all these Tests, the alleged consequence(s) of the Breach must be proven on the Balance of Probabilities (> 50%).

Question 22

What is the Loss of Chance Test?

Answer 22

This Test is confined to cases of Pure Economic Loss. In such cases:

• If the Breach cost the Claimant a real and substantial chance at a better outcome;
• Liability for the Lost Opportunity’s value is found.

Question 23

What is the Material Contribution Test?

Answer 23

This Test is for when multiple cumulative causes drive the Claimant’s Loss. In such cases:

• If the Breach Materially contributes to the Loss, liability for the whole Loss is found.
  • Here, ‘Material’ means more than negligble.

Question 24

What is the Material Increase in Risk Test?

Answer 24

This Test is confined to case of Industrial Disease with scientific uncertainty as to Causation. In such cases:

• If the Claimant’s Loss arises from a single, identifiable, causal Agent; and
• The Breach Materially increased the risk of harm therefrom;
• Liability for the whole Loss is found.

It is irrelevant whether exposure to the Agent was isolated or cumulative.

Question 25

What constitutes a Foreseeable Loss?

Answer 25

A loss that one reasonably anticipates would arise from the breached duty.

Textbook, P. 484-485; Wagon Mound (No. 1) [1961] AC 388.

Question 26

What is Apportionment?

Answer 26

Division of Liability between Co-Defendants based on Factual Causation.

In cases of Mesothelioma, Co-Defendants are jointly and severally Liable.

Question 27

What is the Position on Liability in cases of Multiple Sufficient Causes?

Answer 27

Where all Co-Defendants satisfy the But For Test, the following analysis applies:

• If the Second Defendant has not caused further damage, it will not be Liable.
• If the Second Event is Tortuous:
  • The First Defendant is Liable for the First Loss, even into the Second Event; and
  • The Second Defendant is Liable for the Second Loss
• If the Second Event is Natural, the First Defendant is only Liable up to it.

Question 28

What is Legal Causation?

Answer 28

Whether the Chain of Causation, from Breach to Loss, is preserved.

Question 29

What are the Three Types of Intervening Acts that Break the Chain of Causation?

Answer 29

Natural Events.

• Such Events must be Unforeseeable.

Acts of the Claimant:

• Such Acts must be highly Unreasonable.

Acts of Third Parties:

• Such Acts must be highly Unforeseeable.
• If it is a Medical Professional, the Act must be so gross and egregious as to be Unforeseeable.

Question 30

What constitutes Remoteness?

Answer 30

• Reasonable Foreseeability of the Type of Damage suffered.
• The precise manner and magnitude of Damage suffered are irrelevant.

Applied Objectively.

The Court will take a broad view on Damage Type.

Question 31

What is the Thin Skull Rule?

Answer 31

It is irrelevant that the Claimant’s own weakness or impecuniosity increased the extent of Damage suffered.

Question 32

What are the Elements of the Defence of Consent?

Answer 32

The Claimant:

• Had capacity to give valid Consent to the risk.
• Had full knowledge of the risk’s nature and extent.
• Agreed to the risk and did so voluntarily.

This is a Complete Defence. No Liability is found if successful.

Question 33

Regarding the Defence of Consent, when will Agreement to the Risk be Implied?

Answer 33

When the Claimant’s conduct is tantamount to engaging in an intrinsically and obviously dangerous occupation.

Question 34

What are the Elements of the Defence of Contributory Negligence?

Answer 34

The Claimant:

• Failed to take reasonable steps to secure its own safety; and consequently
• Contributed to its own Damage.

This is a Partial Defence. Damages are reduced by a just and equitable proportion if successful.

Question 35

What are the most important Contextual Considerations for the Defence of Contributory Negligence?

Answer 35

• The Claimant’s age.
• The nature of the Duty owed.
• The sitaution the Claimant was in.
• The Claimant’s occupation, as Rescuers are generally immune from Contributory Negligence.

Question 36

If a Claim of Contributory Negligence is successful, by how much will the Court generally reduce the Defendant’s Liability?

Answer 36

• By 25% if injury could have been avoided.
• By 15% if injury could have been reduced.
• By 0% if injury could not have been avoided.

These are guidelines, not rules.

Question 37

What are the Elements of the Defence of Illegablity?

Answer 37

• The Claimant committed an Illegal (or Grossly Immoral) Act when it suffered Damage.
• Allowing the Defence would not produce disharmony and inconsistency in the Law, considering:
  • Proportionality;
  • The Prohibition’s Purpose; and
  • Relevant Public Policy implications.

This is a Complete Defence. No Liability is found if successful.

Question 38

What are the Remedies for Negligence?

Answer 38

• Injunction.
• Compensatory Damages.

Question 39

What are Two Types of Compensatory Damages?

Answer 39

General Damages: Used for

• Unquantifiable Losses.
• Unprovable future Economic Losses.

Special Damages: Used for

• Quantifiable and Provable Economic Losses up to Trial.

Question 40

Regarding General Damages, what is Pain, Suffering, and Loss of Amenity?

Answer 40

• Pain and Suffering: Compensation for physical and emotional distress caused by the Damage.
• Loss of Amenity: Compensation for the loss of enjoyment of life.

The Court will primarily reference Precedent in its determination of sums.

Question 41

Regarding General Damages, how are Future Losses calculated?

Answer 41

Formula:

• Multiplicand: The annual amount of Future Loss.
• Multiplier: A figure representing the number of years the Loss is expected to continue, adjusted to prevent overcompensation.

Considerations:

• Investment Assumption: Courts assume the lump sum awarded will be invested, and thus adjust the multiplier to account for potential investment returns.
• Life Expectancy and Work Life: The Multiplier may be reduced below the Claimant’s actual life expectancy or remaining working years to prevent excessive awards.
• Deductions: State Benefits, Contractual Sick Pay, and Redundancy Payments may be deducted from Damages.

Question 42

Regarding General Damages, what is the Position if the Claimant Dies?

Answer 42

The Deceased’s Estate can claim for Losses suffered up to Death. Specifically, it can claim:

• Pain and Suffering endured by the Deceased; and
• Financial Losses incurred before Death.

However, it cannot claim:

• Future losses after Death; or
• Loss of Life Expectancy.

Question 43

Regarding General Damages, what is the Position if the Claimant Dies in a Fatal Accident?

Answer 43

The Deceased’s Dependants can claim for Losses suffered as a result of Death. Specifically, they can claim:

• Loss of Financial Support.
• Funeral Expenses, if paid by the Depenants.
• Bereavement Damages, but only by:
  • S/CPs.
  • Cohabitants of at least two years.
  • The Parents of an unmarried Minor, but if the Child is illegitimate, then only the Mother.

This is in addition to the normal Position.

Dependants include:

• Cohabitants of at least two years.
• Close Relatives by blood or marriage.

Question 44

What are the Types of Loss in Negligence Claims?

Answer 44

Personal:

• Physical Harm: Damage to One’s Person or Property.
• Psychiatric Harm: Damage from Psychiatric Illness or a Shock-Induced Physical Condition.

Financial:

• Pure Economic Loss: Economic Loss independant of Physical Harm.
• Consequential Economic Loss: Economic Loss consequent on Physical Harm.

Question 45

What is the General Rule on Pure Economic Loss in Negligence?

Answer 45

The Defendant does not owe a Duty of Care concerning Pure Economic Loss.

Question 46

What are the Exceptions to the General Rule on Pure Economic Loss in Negligence?

Answer 46

• Wills.
• Job References.
• Negligent Misstatement.

Question 47

What is the Exception of Wills to the General Rule on Pure Economic Loss in Negligence?

Answer 47

• Solicitors owe a Duty of Care to an Estate’s Beneficiaries;
• Who may sue for the Negligent Loss of an intended Benefit.

Question 48

What is the Exception of Job References to the General Rule on Pure Economic Loss in Negligence?

Answer 48

Referees owe a Duty of Care and Accuracy to the Referred.

Question 49

What is Negligent Misstatement?

Answer 49

• Duty of Care: The Defendant owes the Claimant a Duty of Care.
• False Representation (Breach): The Defendant makes a False Statement of Fact.
• Reliance: The Claimant reasonably Relies on the Defendant’s False Representation.
• Loss: The Claimant suffers a Loss as a consequence of Reliance.
• Remoteness: The Claimant’s Loss was a reasonably foreseeable consequence of the False Representation.

Question 50

Regarding Negligent Misstatement, what is the Test for Determining the Existence of a Duty of Care?

Answer 50

Elements:

• The Claimant-Defendant relationship must be of sufficient proximity; and
• It must be fair, just and reasonable to impose a duty of care in the circumstances.

Means of Demonstration:

• Reasonable Reliance.
• Assumption of Responsibility.
• Special Relationship of Trust and Confidence.

Question 51

Regarding Negligent Misstatement, what constitutes a Relationship of Sufficient Proximity?

Answer 51

One where the Claimant’s Reliance upon the Defendant’s Statement is a Foreseeable outcome given the circumstances.

Question 52

Regarding Negligent Misstatement, what constitutes Reasonable Reliance?

Answer 52

• Actual Reliance: The Claimant Relied on the Defendant’s Statement.
• Reasonableness of Reliance: The Claimant’s Reliance was reasonable given the circumstances.
• Knowledge of Reliance: The Defendant knew, or ought to have known, of the Claimant’s Reliance.

Question 53

Regarding Negligent Misstatement, which Factors are considered when determining whether the Claimant’s Reliance is Reasonable?

Answer 53

• The context in which the Advice is given.
• The Claimant’s and Defendant’s levels of expertise. The greater the disparity toward the Defendant, the more likely Reliance is reasonable.
• Any other relevant factors.

Question 54

Regarding Negligent Misstatement, what constitues a Voluntary Assumption of Resonsibility?

Answer 54

• Communication: The Defendant communicated the Advice, or knew that it would be communicated, to the Claimant.
• Knowledge of Purpose: The Defendant knew the Purpose for which the Claimant would use the Advice.
• Knowledge of Reliance: The Defendant knew or reasonably believed the Claimant would rely on the Advice without independent enquiry.
• Detrimental Reliance: The Claimant acted upon the Advice to its detriment.

Communication to the Claimant may be as an Individual or a Member of a Determinate Class.

Question 55

Regarding Negligent Misstatement, what constitues a Special Relationship of Trust and Confidence?

Answer 55

• Trust in Exercising Care: The Claimant trusted the Defendant to exercise the necessary degree of care under the circumstances.
• Reasonable Reliance: It was reasonable for the Claimant to trust and rely on the Defendant under the circumstances.
• Knowledge of Reliance: The Defendant knew, or ought to have known, of the Claimant’s Reliance.

Question 56

What is the Standard of Care in a Claim of Negligent Misstatement?

Answer 56

A reasonable person with the Maker’s knowledge, skill, and expertise under the circumstances.

Question 57

Can an Inherently Defective Item be Claimed as Pure Economic Loss?

Answer 57

No.

Question 58

Regarding Psychiatric Harm, what is the Difference between Actual, Primary, and Secondary Victims?

Answer 58

• Actual Victim: Someone who suffers at least some Physical Harm.
• Primary Victim: Someone in the Danger Zone who suffers Psychiatric Harm from reasonable fear for their own safety.
• Secondary Victim: Someone outside the Danger Zone who suffers Psychiatric Harm from reasonable fear for another’s safety.

Actual Victims claim for Physical Damage, whereas Primary and Secondary claim for Phsyciatric Damage. Actual Victims can also be Primary Victims.

Neither Bystanders nor Rescuers are given special status; they must fall into one of these categories.

Question 59

Regarding Psychiatric Harm, what is the Test for Establishing a Duty of Care toward Primary Victims?

Answer 59

Type of Harm:

• The Claimant suffered either:
  • A Medically-Recognised Psychiatric Illness; or
  • A Shock-Induced Physical Condition.

Remoteness of Physical Harm:

• Physical Harm was reasonably Foreseeable consequence of the Breach.

Lack of Precedent:

• If the Case is Unprecedented, the Court will:
  • Draw anaolgies to relevant Precedent;
  • Consider whether the Parties had sufficient Proximity; and
  • Consider whether it would be fair, just, and reasonable to impose a Duty.

Question 60

Regarding Psychiatric Harm, what is the Test for Establishing a Duty of Care toward Secondary Victims?

Answer 60

Remoteness of Psychiatric Harm:

• Psychiatric Harm to someone of Ordinary Fortitude in the same circumstances was a reasonably Foreseeable consequence.
• The Thin Skill Rule only applies if the standard is satisfied.

Relational Proximity:

• The Secondary Victim had a relationship of love and affection with the Main Victim.
• Such relatins are Rebuttable Presumed in:
  • S/CPs;
  • Fiancés; and
  • Parents & Children.

Physical and Temporal Proximity:

• The Secondary Victim was present at the Event or its immediate Aftermath; and
• Saw or heard it with their own senses.

To date, no Claimant outside the Presumed categories of Love and Affection has successfully Relational Proximity.

Question 61

Regarding Psychiatric Harm, what constitutes the Immediate Aftermath?

Answer 61

The Secondary Victim must behold:

• The Event’s fallout as it was immediately after it transpired, likely up to two hours; and
• The Main Victim in its same condition, or at least before any significant changes.

Question 62

Do Doctors owe a Duty of Care to a Person’s Relational Proximates?

Answer 62

No.

Question 63

What is a Medical Crisis?

Answer 63

• A sudden and severe health event affecting an Individual’s medical condition.
• This cannot create a Secondary Victim of a Relational Proximate.

Question 64

If the Claimant is neither a Primary nor Secondary Victim, when may the Defendant still be Liable for Psychiatric Harm?

Answer 64

The Test:

• The Defendant Assumed Responsibility for preventing reasonably Foreseeable or unnecessary Psychiatric Harm from befalling the Claimant.

General Considerations:

• The nature of the Claimant’s role.
• Observable signs of stress or psychiatric distress.
• The Defendant’s capacity to provide resources or adjust demands.