Negligence

Question 1

What is the negligence test? (6)

Answer 1

1. The defendant owed the plaintiff a duty of care.
2. The defendant breached that duty by failing to exercise the degree of care which the courts have deemed reasonable in the circumstances
3. The plaintiff has suffered harm
4. It was the Defendants breach that caused the harm to the Plaintiff
5. The harm caused was not too remote to be claimable (Proximate), anticipated consequence of the breach
6. Compensation

Question 2

Duty of Care (Step 1)

Answer 2

1. Relationships between the parties (Are they neighbors)

2. Are there policy Factors that negate, restrict or strengthen the recognition of a duty of care?

Question 3

Breach of a duty of care? (Step 2)

Answer 3

• Doesn’t have to be perfect just reasonable and prudent

Question 4

Was there a loss? (Step 3)

Answer 4

• Plaintiff must show it has suffered loss.
• Monetary award to make good physical damage.
• Economic loss consequential on physical harm.

Question 5

Causation (Step 4)

Answer 5

• Was the Defendant’s conduct one of the causes of the Plaintiff’s loss?
• Among the mix of possible causes, was the Defendant’s conduct significant enough for liability to follow?

Question 6

The but for test? (Step 5)

Answer 6

• Defendant’s conduct caused the Plaintiff’s harm IF the harm would not have occurred BUT FOR the Defendant’s conduct.

Question 7

Compensation (Step 6)

Answer 7

• Defendant only liable for the “type” or “kind” or damage that a reasonable person would foresee: