Negligence Flashcards
What are the common established duty situations?
(A) one road user to another
(B) doctor to patient.
(C) employer to employee.
(D) manufacture to consumer.
(E) teacher to pupil.
Neighbour principle
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Test to be applied to determine whether or not a given novel situation gives rise to a legal duty of care.
What is the 3 part test to determine whether a duty is owed?
Caparo:
1. Reasonable foresight of harm to the claimant.
2. Sufficient proximity of relationship between the claimant and defendant.
3. Is it fair, just and reasonable to impose a duty.
Is there any liability for omissions?
Duty of care is not owed for omissions.
However if someone decides to act, they have a duty not to make the situation worse.
What 2 stage test is used when someone breached a duty of care?
- What standard of care the defendant should have exercised.
- Whether the defendants conduct fell below the required standard.
Special standards
Where a person exercises a special skill, that person is not judged according to the standard of the reasonable person.
Instead, they will be judged according to the degree of skill or competence to be expected from a person who has that special skill.
What are the relevant factors in determining whether the defendant has achieved the required standard of care?
1 magnitude of risk - how likely was it that the defendants actions could cause an injury and how serious was it likely to be?
2. Cost and practicability of precautions - courts consider what measures could the defendant had reasonably taken to reduce the risk.
3. Defendants purpose - is it in the public’s interest?
3. Common practice - may escape liability if they can show they complied with the accepted practice in their trade or profession.
4. Current state of knowledge - defendants activities are judged by the standard of current knowledge.
Who has the burden of proof to prove breach of duty?
Claimant has the prove on the balance of probabilities, that the defendant has reached the duty of care.
When will Res ipsa loquitur apply?
‘The thing speaks for itself’
Will assist the claimant if they have no direct evidence to show that the defendant was in breach of their duty of care.
If the claimant is unable to prove precisely how an accident took place.
How to determine causation of damage?
- Was the defendants negligence a cause of the claimants harm?
- Was there an intervening act?
- Was the damage too remote?
Remoteness of damage
When the court decides that damage is too far removed, the defendant should not be responsible for it.
Test is of reasonable foreseeability.
If the claimants injury was foreseeable, it does not matter that the precise way in which the claimant was injured was not foreseeable.
Does the defendant owe a duty of care to a claimant who suffers damage which is classed as pure economic loss?
No, unless there is a sufficient close relationship between claimant and defendant.
Examples of consequential economic loss
(A) damage to your property - having to pay for repairs.
(B) loss of earnings because you cannot go to work due to being injured.
(C) medical treatment for the result of your injury.
Examples of pure economic loss
(A) acquiring a defective item of property and unable to sue the manufacturer/ retailer because you don’t have a contract with them.
(B) purchasing a property that is less valuable than the price you paid for it.
Examples of economic loss unconnected to personal injury to the claimant or physical damage to the claimants property
- Damage to the property of a third party - missing a train because there has been a road accident, so had to purchase another train ticket for a later time.
- Lost investment as a result of the negligent financial advice given.
Hedley Byrne principle
Duty is owed if there is a special relationship between defendant and claimant.
(A) an assumption of responsibility by the defendant.
(B) reasonable reliance by the claimant.
What if there had been a disclaimer of liability?
Disclaimer of liability is not relevant to whether a duty of care was owed.
