Negligence

Question 1

Negligence

Answer 1

Act/ omission - duty of care - breach of duty - factual causation - damage suffered remote?

Question 2

Established duties of care

Answer 2

doctor - patient
dentist - patient
road user - other road user
teacher - pupil
lecturer - student
employer - employee
manufacturer - customer

Question 3

Donoghue V Stevenson

Answer 3

neighbour principle - closely/ directly effected & reasonably foreseeable

Question 4

Incrementally / by analogy

Answer 4

set precent or situation similar arisen before?

Question 5

Caparo 3 stage test

Answer 5

• reasonably foreseeable
• proximity
• fair just & reasonable

Question 6

Reasonable foreseeability

Answer 6

C suffering loss/ damage must have been reasonably foreseeable as a result of Ds act/ omission.

Question 7

Proximity examples

Answer 7

boxers & boxing promotion
surveyor & general public (no proximity)

Question 8

Fair just & reasonable examples

Answer 8

McFarlane - pure economic loss is not sufficient
referee owed duty to players

Question 9

Rule of omissions

Answer 9

There is no positive duty to act to prevent harm

Question 10

Exceptions to rule of omissions

Answer 10

• control
• assumption of responsibility
• crating/ adopting risk

Question 11

Third party rule

Answer 11

No general duty of care to prevent others from causing harm

Question 12

Exceptions to third party rule

Answer 12

• special relationship between C & D (proximity)
• special relationship between D and third party (proximity)
• creation of a source of danger
• failure to prevent a known danger

Question 13

Breach of duty

Answer 13

Owes a duty of care and fell below the standard required by law

Question 14

burden of proof

Answer 14

Rests on the claimant - balance of probabilities

Question 15

Standards of care

Answer 15

• genera
• professional
• special

Question 16

general standard of care

Answer 16

objective test - judged against the average person

Question 17

categories of general standard

Answer 17

• previous ordinary conduct
• neither to cautious / too brave
• overall reasonability of decision

Question 18

professional standard of care

Answer 18

skilled / trained - judged against other skilled/ trained people in the same profession

Question 19

medical treatment test

Answer 19

• competent body of medical opinion (accepted / not)
• logical basis for opinion

Question 20

disclosure of treatment information

Answer 20

is there a material risk
should the doctor know/ ought to know this?

Question 21

person with less experience

Answer 21

no defence to breach of duty - judged against the standard of a reasonable professional

Question 22

‘special’ standard of duty of care

Answer 22

• children:
• sporting activities:
• unskilled defendant:
• illness
• emergencies
• state of knowledge

Question 23

children

Answer 23

judged by the standard of someone a similar age

Question 24

sporting activities

Answer 24

only breach if reckless disregard - judgement error is not enough.

Question 25

unskilled defendant (learner)

Answer 25

judged to a reasonably competent standard (learner judged against a reasonably qualified person e.g learner driver)

Question 26

illness

Answer 26

did D know/ was aware of the condition - what actions were taken to prevent?

Question 27

emergencies

Answer 27

exercise care/ skill as reasonable in the circumstances - breach outweigh wider benefit e.g saving lives?

Question 28

state of knowledge

Answer 28

judged at the time of accident - was the danger known of at the time? New development?

Question 29

other relevant factors which can cause breach

Answer 29

- cost of precautions - social value - likelihood of harm - seriousness of injury

Question 30

res ispa loquitor

Answer 30

the actual occurrence is evidence of negligence (factual)

Question 31

RIL burden of proof

Answer 31

defendant - argue incident would not have occurred without negligence

Question 32

conditions of res ispa loquitur

Answer 32

- control - damage - cause of incident must be known

Question 33

Civil Evidence Act 1968

Answer 33

Criminal conviction can be used in evidence of civil proceedings if there is negligent conduct BOF shifts to D to disprove negligence.

Question 34

Pure economic loss

Answer 34

Not fair just &. reasonable to impose a duty of care