Negligence / Duty Of Care

Question 1

What is a tort?

Answer 1

wrongful act against a person or company and his / her property

also includes inaction

injured party has a claim against the person who did it, usually damages

claim usually based on fault

torts classed as intentional and negligent

Question 2

Difference between tort and contract

Answer 2

unlike contract, no agreement between the parties

Question 3

Intentional torts

Answer 3

battery - harmful or offensive contact
assault - harmful or offensive contact or apprehension of it
false imprisonment - confining a person within fixed boundaries

Question 4

What is negligence

Answer 4

most important tort

covers physical injury, economic loss and professional negligence

to success, need to show all the elements of negligence are present

Question 5

What are the elements of negligence

Answer 5

duty of care owed
breach of that duty
damage resulted from the breach

foreseeability

no requirement to prove intent
court looks at what the defendant should have done

Question 6

Case ref duty of care

Answer 6

Donoghue & Stevenson 1932

helped establish modern law on negligence

friend bought Donoghue ginger beer
started drinking
rotten snail fell into glass
suffered shock and stomach illness

sued manufacturer because she did not have a contract with the cafe that sold the ginger beer

court ruling - manufacturer had duty of care to the consumer of his goods
needed to take reasonable care to prevent injury

Question 7

Types of injury or damage

Answer 7

Physical injury
damage to property
nervous shock
economic loss

Question 8

facts ref nervous shock

Answer 8

post traumatic stress disorder,
mental condition resulting from fear for own safety or of close relative
bystander cannot claim

Question 9

types of economic loss

Answer 9

arising from damage to property

pure financial loss

Question 10

Case ref economic loss

Answer 10

Spartan Steel and Alloys v Martin & Co 1973

Martin & co damaged a power cable
Spartan Steel had no power for 14 hours
had to shut down furnace, damaging alloy being produced
also suffered loss of profits

Spartan Steel able to recover loss for damage and reduced profits, but not general economic loss not connected with the damage

Question 11

Negligent misstatements

Answer 11

must be special relationship between parties
i.e. defendant has special knowledge and knows claimant will rely on the info provided
person making statement must know how it will be used

Question 12

Professional negligence

Answer 12

extends to actions / inactions as well as misstatements

Question 13

Test for breach of duty of care

Answer 13

what would a reasonable person have done in that situation
behaviour compared with that of an ordinary person
defendant expected to have same knowledge and understanding as reasonable person
compare with person having relevant skills / qualifications

Question 14

Factors when determining reasonable actions

Answer 14

likelihood of injury
seriousness of risk
cost and practicability
benefit to society as a whole
common practice

Question 15

Factors ref likelihood

Answer 15

degree of care in relation to likelihood

higher risk = greater care

Question 16

Factors ref seriousness

Answer 16

Greater degree of care for very young, old or disabled

Question 17

Factors ref cost & practicability

Answer 17

if cost and / or practicability outweigh the risk, then probably not in breach

Question 18

Factors ref social utility

Answer 18

balanced against usefulness / importance to society

if activity is important, then greater level of risk may be acceptable

Question 19

Factors ref common practice

Answer 19

no breach if defendant can show that his behaviour was common practice

unless the common practice is negligent

Question 20

Relationships where duty of care owed

Answer 20

Employer - employee
Occupier - visitor
Occupier - trespasser
Motorist - other road user
Highway authority - road user
Proximity, i.e. location in relation to each other
Designers, manufacturers, suppliers to customers
Contractors - clients (and vice versa)

Question 21

Case law ref foreseeability

Answer 21

Wagonmiund Overseas Tankship Ltd v Morts Dock & Engineering Co 1961

Mort owned wharf
Ship owned by Tankship leaked oil whcih was carried to Mort#s wharf
Told not flammable
Welding & burning works
Wharf destroyed when oil caught fire

Ruling - defendant could not reasonably have foreseen that the oil would catch fire. Therefore not liable because damage was too remote

Question 22

Reasonable steps for employer to prevent negligence

Answer 22

take positive steps to ensure employee safety
follow current recognised practice
keep up to date with developing knowledge
take more than average care if has more than average knowledge
weigh up risks v effectiveness of precautions (risk assessment)