Negligence Flashcards
What is the Tort of Negligence?
A failure to exercise Reasonable Care and Skill in performing a specific Duty, consequently causing harm to another Party.
What are the Elements of the Tort of Negligence?
- Duty of Care: The Defendant owed the Claimant a Duty of Care.
- Breach: The Defendant violated the Duty of Care.
- Actionable Loss: The Claimant suffered a legally-recognised Loss.
- Casuation: The Claimant’s Loss was caused by the Defendant’s Breach.
- Remoteness: The Claimant’s Loss was a reasonable foreseeable consequence of the Defendant’s Breach.
How is the Existence of a Duty of Care determined?
According to what the Parties’ conduct would reasonably suggest, given matters of fact, fairness, and public policy.
What are the Three Tests for Determining the Existence of a Duty of Care?
- The Threefold Test.
- The Incremental Test.
- The Assumption of Responsibility Test.
What are the Elements of the Threefold Test?
Forseeability of Loss:
- 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.
In the Threefold Test, what constitutes Sufficient Proximity?
A measure of control over, and responsibility for, the situation giving rise to the Loss.
In the Threefold Test, when is it Unnecessary to establish the ‘Public Policy’ criterion?
When there is a demonstrable Voluntary Assumption of Responsibility by the Defendant.
What constitutes a Voluntary Assumption of Responsibility?
- A conscious, considered, or deliberate decision by the Defendant;
- To assume a particular duty vis-à-vis the Claimant.
Applied Objectively.
What is the Incremental Test?
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.
What is the Assumption of Responsibility Test?
Voluntary Assumption of Responsibility:
- The Defendant voluntarily Assumed Responsibility for what it 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.
Can the Defendant’s Omissions give rise to a Duty of Care?
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.
Why is a Public Body less likely to Owe a Duty of Care under the Threefold Test?
- 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.
How is the Scope of a Duty of Care determined?
By observing the:
- Factual matrix;
- Contractual terms;
- Parties’ relationship; and
- Responsibilites owed by the Parties to one another.
What is the Defendant’s Standard of Care?
- 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, unless the Defendant is a Child, in which case, it is both.
The minimum threshold for a Responsible Body of Professionals is an acceptable number of experts with sufficiently strong pedigrees. Solid figures are inapplicable.
What is the Defendant’s Standard of Care if they are a Medical Professional acting in an Advisory Capacity?
- Patients must be informed of all Material Risks involving a Treatment and any reasonable alternatives.
- However, Professionals may withhold if:
- Immediate Treatment is necessary; or
- Disclosure would seriously harm the Patient’s health.
Regarding Medical Professionals acting in an Advisory Capacity, what constitutes a Material Risk?
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.
What are the Main Considerations in determining whether a Breach has occured?
- 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.
Does acting in accordance with Common Practice constitute Reasonable Care and Skill?
Yes, but only if:
- The Body of Opinion informing the Practice has a defensible position on cost-benefit.
For the State of the Art Defence to apply, what must the Practitioner have been doing?
Undertake reasonable efforts to remain abreast of new, and especially mainstream, developments in their field.
When will the Facts Speak for Themselves?
Res Ipsa Loquitur.
- The Accident would not normally occur without negligence.
- The Accident was under the Defendant’s control, or of 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.
What is Factual Causation?
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.
What are the Alternative Tests of Factual Causation?
Used when the But For Test is highly difficult or impossible to apply.
- 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%).
What is the Loss of Chance Test?
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;
- The Defendant is Liable for the Lost Opportunity’s value.
What is the Material Contribution Test?
This Test is for when multiple cumulative causes drive the Claimant’s Loss. In such cases:
- If the Breach Materially contributes to the Loss;
- The Defendant is Liable for the whole Loss.
Here, ‘Material’ means more than negligble.
What is the Material Increase in Risk Test?
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.
What constitutes a Foreseeable Loss?
A loss that one reasonably anticipates would arise from the breached duty.
What is Apportionment?
Division of Liability between Co-Defendants based on Factual Causation.
In cases of Mesothelioma, Co-Defendants are jointly and severally Liable.
What is the Position on Liability in cases of Multiple Sufficient Causes?
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.
What is Legal Causation?
Whether the Chain of Causation, from Breach to Loss, is preserved.
What are the Three Types of Intervening Acts that Break the Chain of Causation?
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.
What constitutes Remoteness?
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.
What is the Thin Skull Rule?
It is irrelevant that the Claimant’s own weakness or impecuniosity increased the extent of Damage suffered.
What are the Elements of the Defence of Consent?
The Claimant:
- Voluntarily agreed to the risk.
- Had capacity to give valid Consent to the risk.
- Had full knowledge of the risk’s nature and extent.
This is a Complete Defence. No Liability is found if successful.
Regarding the Defence of Consent, when will Agreement to the Risk be Implied?
When the Claimant’s conduct is tantamount to engaging in an intrinsically and obviously dangerous occupation.
What are the Elements of the Defence of Contributory Negligence?
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.
What are the most important Contextual Considerations for the Defence of Contributory Negligence?
- The Claimant’s age.
- The nature of the Duty owed.
- The situation the Claimant was in.
- The Claimant’s occupation, as Rescuers are generally immune from Contributory Negligence.
If a Claim of Contributory Negligence is successful, by how much will the Court generally reduce the Defendant’s Liability?
- 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.
What are the Elements of the Defence of Illegablity?
- 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.
What are the Remedies for Negligence?
- Injunction.
- Compensatory Damages.
What are Two Types of Compensatory Damages?
General Damages: Used for
- Unquantifiable Losses.
- Unprovable future Economic Losses.
Special Damages: Used for
- Quantifiable and Provable Economic Losses up to Trial.
Regarding General Damages, what is Pain, Suffering, and Loss of Amenity?
- 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.
Regarding General Damages, how are Future Losses calculated?
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.
Regarding General Damages, what is the Position if the Claimant Dies?
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.
Regarding General Damages, what is the Position if the Claimant Dies in a Fatal Accident?
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 Dependants.
-
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.
What are the Types of Loss in Negligence Claims?
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.
What is the General Rule on Pure Economic Loss in Negligence?
The Defendant does not owe a Duty of Care concerning Pure Economic Loss.
What are the Exceptions to the General Rule on Pure Economic Loss in Negligence?
- Wills.
- Job References.
- Negligent Misstatement.
What is the Exception of Wills to the General Rule on Pure Economic Loss in Negligence?
- Solicitors owe a Duty of Care to an Estate’s Beneficiaries;
- Who may sue for the Negligent Loss of an intended Benefit.
What is the Exception of Job References to the General Rule on Pure Economic Loss in Negligence?
Referees owe a Duty of Care and Accuracy to the Referred.
What are the Elements of Negligent Misstatement?
- 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.
Regarding Negligent Misstatement, what is the Test for Determining the Existence of a Duty of Care?
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.
Regarding Negligent Misstatement, what constitutes a Relationship of Sufficient Proximity?
One where the Claimant’s Reliance upon the Defendant’s Statement is a Foreseeable outcome given the circumstances.
How can Negligent Misstatement be Established through Reasonable Reliance?
- 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.
Regarding Negligent Misstatement, which Factors are considered when determining whether the Claimant’s Reliance is Reasonable?
- 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.
How can Negligent Misstatement be Established through Voluntary Assumption of Responsibility?
- 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.
Regarding Negligent Misstatement, what constitues a Special Relationship of Trust and Confidence?
- 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.
What is the Standard of Care in a Claim of Negligent Misstatement?
A reasonable person with the Maker’s knowledge, skill, and expertise under the circumstances.
Can an Inherently Defective Item be Claimed as Pure Economic Loss?
No.
Regarding Psychiatric Harm, what is the Difference between Actual, Primary, and Secondary Victims?
- 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.
Regarding Psychiatric Harm, what is the Test for Establishing a Duty of Care toward Primary Victims?
Recognised 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.
Regarding Psychiatric Harm, what is the Test for Establishing a Duty of Care toward Secondary Victims?
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 relations are Rebuttably 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 shown Relational Proximity.
Regarding Psychiatric Harm, what constitutes the Immediate Aftermath?
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.
Do Doctors owe a Duty of Care to a Person’s Relational Proximates?
No.
What is a Medical Crisis?
- A sudden and severe health event affecting an Individual’s medical condition.
- This cannot create a Secondary Victim of a Relational Proximate.
If the Claimant is neither a Primary nor Secondary Victim, when may the Defendant still be Liable for Psychiatric Harm?
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.
