Negligence / Duty Of Care Flashcards
What is a tort?
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
Difference between tort and contract
unlike contract, no agreement between the parties
Intentional torts
battery - harmful or offensive contact
assault - harmful or offensive contact or apprehension of it
false imprisonment - confining a person within fixed boundaries
What is negligence
most important tort
covers physical injury, economic loss and professional negligence
to success, need to show all the elements of negligence are present
What are the elements of negligence
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
Case ref duty of care
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
Types of injury or damage
Physical injury
damage to property
nervous shock
economic loss
facts ref nervous shock
post traumatic stress disorder,
mental condition resulting from fear for own safety or of close relative
bystander cannot claim
types of economic loss
arising from damage to property
pure financial loss
Case ref economic loss
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
Negligent misstatements
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
Professional negligence
extends to actions / inactions as well as misstatements
Test for breach of duty of care
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
Factors when determining reasonable actions
likelihood of injury seriousness of risk cost and practicability benefit to society as a whole common practice
Factors ref likelihood
degree of care in relation to likelihood
higher risk = greater care
Factors ref seriousness
Greater degree of care for very young, old or disabled
Factors ref cost & practicability
if cost and / or practicability outweigh the risk, then probably not in breach
Factors ref social utility
balanced against usefulness / importance to society
if activity is important, then greater level of risk may be acceptable
Factors ref common practice
no breach if defendant can show that his behaviour was common practice
unless the common practice is negligent
Relationships where duty of care owed
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)
Case law ref foreseeability
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
Reasonable steps for employer to prevent negligence
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)
