Principles of Tort: Negligence, Remedies and Defences Flashcards
What is the essence of negligence?
- the recognition of a duty of care owed by one person to another
- the breach of that duty
- the cause of damage by that breach which was reasonably foreseeable
What is the primary aim of the tort of negligence?
To compensate for physical harm to person or property together with any consequential economic loss
What is the case that sets out the duty of care which is owed in negligence?
Donoghue v Stevenson [1932]
What is the duty of care test referred to as?
The neighbour test
What is the duty of care?
To take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour
Who is considered to be a ‘neighbour’?
Persons who are so closely and directly affected by the act that you ought reasonable to have them in contemplation as being so affected
When there is no existing guidance case law what approach should be used?
The Caparo test
What is the Caparo test?
A duty of care exists when:
1. the harm must be reasonably foreseeable;
2. the parties must be in a relationship of proximity; and
3. it must be fair, just and reasonable to impose liability
When should the Caparo test not be used?
Where the facts of the case fall within an established category
What is the standard of care in negligence?
It is objective and that of a reasonable person in the circumstances of the particular case
When will there be a heightened standard of care?
Where a person is recognised as having a particular skill and is qualified in a professional field, for example a doctor or lawyer
If it has been established that a duty of care exists, what needs to be shown in order for there to be liability in negligence?
The duty must be shown to have been breached and that breach caused loss and/or damage
What is the test relating to causation?
The ‘but for’ test - if the harm would not have occurred but for the breach of duty, the breach caused the harm. If the harm would have occurred in any event, any breach by the defendant has not caused the harm
What does the court take into consideration in relation to remoteness?
If damage is not foreseeable it is likely to be too remote and if damage is too remote then it is not likely to be foreseeable
What duty does an employer have to their employee?
A basic primary duty which is to take reasonable care for the safety of all employees whilst acting in the course of their employment
Where is the employers duty also reflected?
Health and Safety at work etc Act 1974
How might the employers duty be discharged?
By carrying out appropriate risk assessments and taking action to address risks which are reasonable and proportionate
Can employers be held liable for the negligence of employees or independent contractors?
Yes, through vicarious liability
What is required to give rise to vicarious liability?
That there is a relationship between the wrongdoer and the purported employer which is capable of giving rise to vicarious liability.
That the scope of the employment duties is sufficiently connected with the wrongful act or omission
What are the possible defences for negligence?
- consent
- contributory negligence
- importance of objective and necessity
- illegal conduct as a base for a claim
When can consent be a defence?
If a claimant has voluntarily consented to run a particular risk they cannot sue should that risk materialise and they suffer an injury as a result
When does the defence of consent not apply?
Where a dangerous situation has been created by the defendants’ own negligent act which has placed a person in peril and whom another person, a rescuer, acts to save or protect
When does the defence of contributory negligence apply?
Where:
- the claimant has been at fault;
- the claimant’s fault has contributed to the infliction of their injuries; and also
- the claimant’s fault has contributed to the extent of their injuries
What will the court consider in deciding whether there has been contributory negligence?
What standard of care might reasonably have been expected of the claimant in the particular circumstances to prevent foreseeable harm being caused to them
What is the reduction for contributory negligence for failing to wear a seatbelt?
25% but only if the injury would have been prevented altogether by wearing the seat belt
What is the purpose of a personal injury claim?
To seek compensation to, as far as possible, put the injured person back to the position they would have been in had the accident not occurred
Damages must be…
fair, reasonable and proportionate
What are the types of damages?
General damages and special damages
What are general damages for?
To compensate the claimant for the impact of the injury on the claimant’s ability to enjoy life
What comes under general damages?
- pain and suffering
- loss of amenity for the injury
- loss of congenial employment
- loss of holiday
- disadvantage on the labour market
What do the Judicial College guidelines take into consideration to assist court in achieving consistency as to the appropriate level of award for damages?
- the severity of the injury
- the speed of recovery
- any complicating factors
- the impact on the claimant’s life
When might a claim for loss of congenial employment arise?
When a claimant can no longer work in employment which gave them a particular source of satisfaction or status
Where the claimant is likely to find it difficult to find fresh employment if they are thrown onto the job market what award may they claim?
a Smith v Manchester award