Negligence - topic 7

Question 1

What are the 3 principal types of judge-made civil obligations?

Answer 1

contract, tort, and equity

Question 2

Liability in the tort of negligence and negligent misstatement:

Answer 2

• the tort of negligence concerns liability for carelessness
• the tort of negligent misstatement concerns liability for careless word

Question 3

Tort definition

Answer 3

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

Question 4

What is negligence?

Answer 4

legal: failure to meet a particular standard of care

Question 5

are there any contractual or equitable obligations between the parties in the tort of negligence?

Answer 5

no, however there ids an obligation ofcare (duty of care)

Question 6

In order to succeed in an action for negligence, plaintiff must prove:

Answer 6

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)

Question 7

The last point in order to succeed in an action for negligence:

Answer 7

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

Question 8

Element 1 (required to be proven in a negligence action) Duty of care

Answer 8

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?

Question 9

according to Donoghue v Stevenson, a person owes a duty of care to those people:

Answer 9

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)

Question 10

Notion of forseeability

Answer 10

you must take reaosonable care to avoid acts or omissions which you cn reasonably forsee would be likely to injure your ‘neighbour’

Question 11

the neighbour principle

Answer 11

persons who are so closely and directly affected by my act that I ought reasonably to have them in mind when I act -

Question 12

Bourhill v young 1943

Answer 12

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

Question 13

Temporal proximmity (time) - Meah v McCreamer 1986

Answer 13

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

Question 14

Physical proximity (place)

Answer 14

may relate to the physical prxoity of the plaintiff; or may relate to relationship between the parties

Question 15

Dorset yacht v Home Office

McCarthy v Wellington city council

Answer 15

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

Question 16

Policy factors influencing the duty of care issue

Answer 16

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

Question 17

factors affecting the judicial imposition of Duty of care

Answer 17

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?

Question 18

Rolls Royce NZ ltd v Crter Holt Harvey ltd (2005)

Answer 18

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

Question 19

Element 2) Breach of duty

Answer 19

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

Question 20

the requisite standard of care - the reasonable person test

Answer 20

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

Question 21

risk allocation

Answer 21

the care that a person is required to take also depends on the risks involved in the activity

Question 22

Element 3) causation

Answer 22

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

Question 23

Basic test for causation; the ‘but for’ test

Answer 23

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

Question 24

Element 4) remoteness of harm

Answer 24

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

Question 25

remoteness of harm

Answer 25

a wrongful act can result in a plaintiff suffering different types of loss, some may be unexpected or far fetched. The remoteness of harm looks at whether the defendant is liable for all the different losses, and looks at whether some limit should be placed on the kinds of losses

Question 26

Basic Rule

Answer 26

the defendant is liable for the type or kind of loss that a reasonable person could forsee, must be real risk and not far fetched

Question 27

Overseas Tankship (UK) ltd v morts dock and engineering Co ltd

Answer 27

oil spills into harbour from a’s ship. oil drifts across harbour & under b’s hard. B welding - spark lit cotton waste floating on water which ignites oil - whard catches fire and damaged
A neither knew, nor could reasonably be expected to know the particular kind of engine oil was capable of instant flammability so kind of damage was not forseen - however pollution clean up costs were foreseeable

Question 28

negligent misstatment

Answer 28

relatively recent variation of the tort of negligence - it is about saying (or not saying) something negligently not doing or (or not doing) something

Question 29

comparison between negligence (physical acts) and misstatement (statements)

Answer 29

physical acts; duty of care = forseeabiloity and proximity
Breack of standard of care
Factual causation
Remoteness of Harm

Statements; 
assumed responsibility (special relationship)
Breach of standard of care 
factual causation= actual reliance 
Remoteness of harm (economic loss only)

Question 30

Relationship type 1

Answer 30

plaintiff is in a contract with defendant

liability in contract and negligent misstatement eg doctor / patient

Question 31

Relationship type 2

Answer 31

plaintiff and defendant have communicated directly or indirectly
liability likely eg diamon manufacturing v Hamilton (1968) (buyer of comany v accountants)
accountant gives report directly to DM accountants - special relationship with DM - thus proximity and duty of care

Question 32

relationship type 3

Answer 32

defendant knows plaintiff will rely and act on his/her advice for an immediate purpose
liability likely

Smith v Erie Bush (1990) - purchasers of property v valuer
report prepared at the requested of the purchaser bank as part of obtaining finance for purchaser of house. Not unreasonable for the purchaser of amodest house to rely on the surveyors report

Question 33

Relationship type 4

Answer 33

defendant has special knowledge may reasonably infer plaintiff will use
liability possible
price waterhouse v Kwan (2000) - auditor of a law firm - claimed they were negligent in their audits in not discovering fraudulent transactions - duty of care to investors in solicitors nominee company

Question 34

Relaitionship type 5

Answer 34

Defendant knows statement likely to be relied on but knows nothing about plaintiff
liability unlikely
Caparo Industries v Dickman (1990) - aduited accounts, no duty of care owed to investors in company