Negligence - topic 7 Flashcards
What are the 3 principal types of judge-made civil obligations?
contract, tort, and equity
Liability in the tort of negligence and negligent misstatement:
- the tort of negligence concerns liability for carelessness
- the tort of negligent misstatement concerns liability for careless word
Tort definition
a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries or invasion of privacy
What is negligence?
legal: failure to meet a particular standard of care
are there any contractual or equitable obligations between the parties in the tort of negligence?
no, however there ids an obligation ofcare (duty of care)
In order to succeed in an action for negligence, plaintiff must prove:
1) that the defendant owed theplaintiff a duty o care
2) that the defendant breached that duity of care by failing to exercise the degree of care whih the courts have deemed appropriate in the circumstances
3) that it was the defendants breach which caused harm to the plaintiff (the causation element)
The last point in order to succeed in an action for negligence:
4) that the harm to the plaintiff was not so remote from the defendants breach as to make it undesireable to compensate the plaintiff for reasons of social policy or economic efficiency (the remoteness element)
if the plaintiff is not able to prove all of these requisite elements, the action will be unsuccessful and the defendant will thus avoid liability
Element 1 (required to be proven in a negligence action) Duty of care
does the defendant owe a duty of care to the plaintiff? the courts will ask whether it is just and reasonable to impose a duty of care in the light of all circumstances;
what is the relationship?
are there any policy factors that negate / restrict / strengthen the recognition of the existence of a duty of care?
according to Donoghue v Stevenson, a person owes a duty of care to those people:
who are close enough to be affected by their actions (proximity)
who the person should reasonably forsee as people who might be impacted by their actions (forseeability)
Notion of forseeability
you must take reaosonable care to avoid acts or omissions which you cn reasonably forsee would be likely to injure your ‘neighbour’
the neighbour principle
persons who are so closely and directly affected by my act that I ought reasonably to have them in mind when I act -
Bourhill v young 1943
pregannt passer by upset by loud sudden noise 45 feet away nervous shock = stil born birth no liability (this was not forseen to injure her - complete accident, although very sad) - was not foreseeable
Temporal proximmity (time) - Meah v McCreamer 1986
A injured B causing brain damage,
, months later B attacked others
A is not liable for injury to those attacked because it was a certain length of time after
Physical proximity (place)
may relate to the physical prxoity of the plaintiff; or may relate to relationship between the parties
Dorset yacht v Home Office
McCarthy v Wellington city council
prisoners escaped, stole yacht and crashed into other yachst
duty is owed
children steal explosives from locked safe, subsequently injured, problem of proximity being time and space, duty is now owed
Policy factors influencing the duty of care issue
the courts may also seek to limit the scope of the duty for reasons of economic efficiency or generally accepted notions for what is fair
factors affecting the judicial imposition of Duty of care
1) there are no presumptions for or against finding a duty of care
2) judicial reasoning by way of analogy - finding analogies with previous cases
3) if economic loss (as opposed to physical loss) the court have in the past been less willing to impose a duty of care
4) a special relationship may result in a court being more inclined to impose a duty of care
5) is there a legislative background which encourages or discourages the imposition of a duty of care
6) is there a contractual background that discourages or incourages the imposition of a duty of care?
Rolls Royce NZ ltd v Crter Holt Harvey ltd (2005)
genesis had a contract with carter holt to provide a power station, and genesis had a subcontract with rolls royce where RR would actually design the station
CH complained that the station was defective anddid not conform to contractual specifications
CH sued genesis for breach of contract and RR aswell for negligently failing to perform its contractual obligations (there was no contract between CH and RR)
the court held that it would not impose a duty in negligence on RR - damage was foreseeable but no contract to ch and RR
Element 2) Breach of duty
the second element required to be proven in a negligence action is that the defendant has breached the duty of care owed to the plaintiff
the requisite standard of care - the reasonable person test
negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinary regulatenthe conduct of human affairs would not do
risk allocation
the care that a person is required to take also depends on the risks involved in the activity
Element 3) causation
the third element is that the defendants conduct is a cause of the plaintiffs loss - this involves an enquiry into whether the defendants conduct actually did cause or contribute to the plaintiffs harm = factual causation
Basic test for causation; the ‘but for’ test
p’s loss would not have occured but for defs negligent act or omission - if p’s loss would have happened regardless of defs actions, defs not liable
Element 4) remoteness of harm
the fourth element, is that the harm of the plaintiff was not too remote (from the defendants breach) - can be referred to as legal causation 9rather than factual)
looks into whether the defendants misconduct was significant enough in order to justify legal liability imposed
