Negligence Flashcards
What is negligence in tort law?
A civil wrong where a duty of care is breached, causing damage.
What test is used to establish causation in negligence?
The “but for” test – but for the defendant’s actions, would the harm have occurred?
What is remoteness in negligence?
A principle limiting liability to only foreseeable damages to avoid excessive claims.
What are the three elements a claimant needs to prove to succeed in a negligence claim?
- defendant owed them a duty of care
- defendant breached that duty (what would a reasonable person have done in that situation)
- and that the breach caused the claimant to suffer damage. The damage must also not be too remote.
Explain the “thin-skull rule” and its significance in determining remoteness of damage.
The “thin-skull rule,” also known as the “eggshell skull rule,” states that a defendant must take the victim as they find them. If a victim is more susceptible to a certain injury, the defendant is liable for all injury caused, even if the extent of the injury was not reasonably foreseeable.
What a reasonable person would have done is judged by
experts in that area
In mesothelioma cases, employers have
joint and several liability. This means that in an MCQ, if there are three employers where a claimant had contact with asbestos, the final solvent employer can be liable to pay the damages in full
Consent is usually available as a
Full defence for any personal injury although be wary of anything that goes beyond that which is reasonable or fair in a sports game
The defence of contributory negligence results in a
Reduction in the amount of damages awarded to the claimant
Engagement in an illegal activity is a
Complete defence
Can claim’s be issued against a dead person or on behalf of a dead person?
Yes - compensatory damages on behalf of their estate
Necessity is a
Defence - when a person acts in their best interests without obtaining their consent. Arises most in the tort of battery to save a persons life
Vicarious liability is
the principle by which an employer can be held liable for the torts of an employee. Advantage to this - employer has more resources than the employee
The modern rules for vicarious liability require only that the employer and the employee are in a relationship
“akin to employment” so look for a relationship that is sufficiently similar to employment
What is the Caparo test?
where there is not an existing precedent for a study of care, Caparo test is implemented / used by the courts to assess if there is a duty of care
What are the key elements of the caparo test?
- reasonable foreseeable from the d’s actions that C would suffer harm
- proximity in relationship (physical or non-physical)
- would it be fair, just and reasonable for the court’s to impose a duty of care
What approach does the court take to developing a duty of care?
- incrementally and in line with case law
The public policy limb in Caparo
the courts will look at public policy in duty of care situations and omissions ie. failures to act. This is because if they impose a duty or declare an omission for a member of the public sector this will result in damages awarded from taxpayers money. As a result, always consider the public policy side of things when applying the Caparo test
What test is applied in a duty of care situation?
breach of a duty of care is an objective test, look at how a reasonable person in that situation would have behaved and how the actual D did behave
What is the test to establish a breach of the duty of care?
burden is on C to establish that on the balance of probabilities, D’s actions fell below the standard of care required. One exception to this is in road traffic accidents where the D must show that their actions did not fall below the standard of care required.
Volenti Non Fit Injuria is a
complete defence to negligence
means consent
only a valid defence if it has been fully given voluntarily
What are the two exceptions to the defence of consent? (volenti …)
- employer and employee
- rescuer acting out of a moral compass
neither fully and freely gave their consent
defence: contributory negligence what does it achieve for a claim?
reduces the amount of damages owed
What is the primary remedy for negligence claims?
damages
general damages are
future damages
future loss of earnings etc
special damages are
past costs
cover costs ie. medical costs up to the date of trial
compensatory damages
are designed to the place the defendant in the position they would have been had the damage not have occurred
