Negligence - Duty, Causation, and Defences

Question 1

What are the key elements for the tort of negligence to apply?

Answer 1

1. A owes B a duty of care
2. A breaches this duty
3. The breach causes damage to B

Question 2

A defendant cannot exclude liability for personal injury or death resulting from negligence when they’re acting in what?

Answer 2

Acting in the course of business

Question 3

What are the three requirements needed for a court to imply a novel duty of care?

Answer 3

1. C is a foreseeable claimant
2. Relationship of sufficient proximity between C and D
3. Fair, just, and reasonable to impose a duty on D

Question 4

What are the four exceptions to the rule that there is no liability for omission/failure to act?

Answer 4

1. Special relationships
2. D has control over victim
3. Harm is caused by third party under D’s control
4. Rescuers who make the situation worse

Question 5

What type of standard is the duty to act with reasonable care?

Answer 5

Objective standard

Question 6

In assessing whether D’s conduct fell below a reasonable standard of care, the court will balance what 2 factors?

Answer 6

1. Magnitude of risk in D’s activity
2. Practicability of taking precautions to avoid such risk

Question 7

In assessing the magnitude of risk involved in D’s activity, what two things will the courts look at?

Answer 7

1. Likelihood of harm
2. Seriousness of harm

Question 8

When considering the precautions in which D ought to have taken to meet the standard of reasonable care, what is something the court’s will look at?

Answer 8

Social utility of D’s conduct

Question 9

Doctors have a duty to _____ patients of material ____ of treatment

Answer 9

warn, risk

Question 10

Generally, a child must act as a reasonable child of the same ____ would. However, a child doing _____ things may be held to an ____ standard

Answer 10

age, adult, adult

Question 11

What is the doctrine of res ispa loquitur?

Answer 11

“The thing speaks for itself” - where the courts infer negligence from the nature of an accident or injury, even when there’s no evidence of how the harm came to be

Question 12

What are the three elements required for res ispa loquitur to apply?

Answer 12

1. Accident wouldn’t normally happen without negligence
2. No explanation for the accident
3. The thing causing the accident was under D’s control

Question 13

What are the three elements of causation in negligence claims?

Answer 13

1. But for test to be shown on a balance of probabilities
2. No new act intervened between D’s breach and C’s injury
3. C’s harm was reasonably foreseeable, i.e. not too remote

Question 14

If an injury could have resulted from a number of different causes acting ________, C only needs to show that D’s breach ___________ ______ to C’s harm

Answer 14

together, materially contributed

Question 15

When will a new intervening act (including C’s own action) break the causal chain between D’s breach and C’s injury?

Answer 15

When the intervening act is unforseeable

Question 16

The chain of causation is unlikely to be broken by an action which D clearly ought to have ________ as a very likely ___________ of his negligence

Answer 16

foreseen, consequence

Question 17

Where C suffers from one indivisible injury (i.e., both Ds make a material contribution but the damages can’t be apportioned), C can recover damages _ _____ from _______ __________

Answer 17

in full, either defendant

Question 18

If a D can prove they paid more than their share of fault for an indivisible injury, they can seek ________ from the other D

Answer 18

contribution

Question 19

Where C suffers from a divisible injury (i.e., where it’s possible to account D1 for a percentage of the damage/harm and D2 for a percentage), each D is liable only for the __________ __ __ ______ they caused

Answer 19

proportion of the injury

Question 20

If C suffers from successive injuries , what can C recover from each defendant?

Answer 20

Only damages for the injury caused by each D

Question 21

What type of defence is contributory negligence?

Answer 21

Partial defence

Question 22

What type of defence is voluntary assumption of risk?

Answer 22

Complete defence

Question 23

What are 2 requirements needed for the voluntary assumption of risk defence apply?

Answer 23

1. C has full knowledge of risk; and
2. C freely and voluntarily assumes the risk

Question 24

Statute precludes the voluntary assumption of risk defence applying to passengers in what type of accidents?

Answer 24

road traffic

Question 25

What type of defence is illegality?

Answer 25

Complete defence

Question 26

For the defence of illegality to apply, C must not make a claim based on their own ______ or ________ act

Answer 26

illegal, criminal