negligence sequence (duty, breach, causation, loss) Flashcards
what is the most common tort in practice?
negligence
which elements of the negligence sequence must C prove?
- duty of care
- breach of duty
- causation; and
- remoteness
on the balance of probabilities.
which elements of the negligence sequence must D prove?
defences
what remedies are available in negligence?
what are the recognised losses in negligence?
- personal injury
- property damage
- consequential economic loss
if there is no precedent for a duty of care (BOTH ACTS AND OMISSIONS), what should you consider next?
Caparo test:
(can the duty be imposed by analogy? if not):
1. foreseeability of harm
2. proximity between C and D (eg assumption of responsibility in Barrett v MOD)
3. fair, just and reasonable to impose a duty? (policy considerations v high standards)
what duty is encapsulated in Cassidy v Ministry of Health?
medical professionals owe their patients a duty once they accept them for treatment
what duty is encapsulated in Capital and Counties Plc v Hampshire CC?
fire brigade does not have a duty to attend a fire, but if they do, then they have a duty not to make things worse through a positive act
what is the general rule wrt duty owed for omissions?
no duty owed (Smith v Littlewoods Org)
which omissions can directly cause a claimant’s loss?
- statutory duty
- contractual duty
- D has sufficient control
- D assumes responsibility
- D creates the risk
which omissions by a third party can cause a claimant’s loss (via D)?
- There is sufficient proximity between D and C; and/or
- There is sufficient proximity between D and third party; and/or
- D created the danger; and/or
- The risk is on D’s premises
what is the impact of finding multiple exceptions to the general rule on omissions?
it is more likely that a duty will be owed
