Negligence Sequence Flashcards
What are examples of established DOC situations?
- One road user to another;
- Doctor and patient;
- Teacher and student
- Employer to employee;
- Manufacturer to consumer
What is the ‘Caparo’ test when considering non-established DOC situations?
(i) Reasonable foresight of harm to C;
(ii) Close proximity of relationship between D and C;
(iii) Fair just and reasonable to impose a DOC on D
What is the general rule on omissions to act?
That there is no duty of care for omissions.
What is the exception to the general rule of omissions?
If someone acts, they have a duty to not make the situation worse.
E.g. if you help out, and omit an aspect which would have been useful, there is a duty on you to not make it worse.
When is there a duty to act positively?
When a person has some sort of power or control in the situation, e.g. parent and child or employer and employee etc.
What is the general standard of care owed? How is it assessed?
The duty to act as a reasonable person would; it is objective, doesn’t consider the personal attributes of the defendants.
When is the general standard of care varied?
When a defendant has a skill and they’re performing that skill, they’re held to the standard of those in their profession;
e.g. a doctor is held to the standard of a field of medical practitioners, not to the reasonable man.
What is the standard if there is an under-skilled defendant, e.g. a learner driver or a trainee solicitor?
The standard assumes that they’re competent, e.g. a reasonable driver or competent solicitor
What is the standard of care owed by a child?
A child is expected to show such care as can be reasonably expected of an ordinary child of the same age.
What is considered when assessing a breach?
The risk of harm created by the defendant’s actions;
The cost and practicality of precautions in mitigating such harm;
Defendant’s purpose, e.g. high public interest, less likely to be negligent;
Whether the actions are common practice;
The current state of knowledge when the breach was committed.
What is the burden for the claimant in proving D breached their DOC?
C must prove their case on a balance of probabilities.
What is the test for factual causation?
‘But for’. Meaning, but for D’s actions, would C have suffered their loss? If yes, they are the factual cause of the loss.
In the standard but for test for factual causation, what is the threshold met to prove that D’s actions caused C’s loss?
50.1%+. Anything less means the but for test cannot be satisfied.
What is the material contribution test for causation?
Must show that C just needs to show D’s negligence led to a material contribution to the harm.
What is the material increase in risk test for causation?
When there is scientific uncertainty, and there are multiple causes, if D’s negligence can be assessed to increase risk of the damage, there is factual causation.
