Tort 1 - Negligence Flashcards
What is the sequence to prove for negligence?
- Loss or damage
- Duty of care
- Breach of duty
- Causation
- Remoteness
- Defences
- Remedies
C must prove #1-5; D must prove #6.
What are the four tests for duty of care?
- Is there a precedent making clear whether or not duty is owed?
- Was the harm suffered reasonably foreseeable?
- Was there proximity between the claimant and defendant?
- Is it fair, just and reasonable to impose duty of care?
What are examples of established precedents for duty of care?
- Road user to road user
- Doctor to patient
- Police to public
Be careful with police duty as there are situations where it may not exist.
What policy considerations are looked at when determining if it is fair, just, and reasonable to impose a duty of care?
- Floodgates
- Insurance
- Crushing liability
What is the general rule regarding omissions in duty of care?
The law of tort imposes liability on those who cause injury or damage to others and NOT on an omission.
What is an exception to the general rule regarding omissions?
- Where there is a statutory duty
- Where there is a contractual duty
- Where the defendant has sufficient control over the claimant
- Where the defendant assumes responsibility for the claimant
- Where the defendant creates the risk
Fill in the blank: The police owe ______ to respond to emergency calls.
no duty of care
What is the general rule regarding failure to prevent a third party from causing harm?
No duty is imposed on a failure to prevent a third party from causing harm.
What are the exceptions to the rule regarding failure to prevent a third party from causing harm?
- Sufficient proximity between the claimant and defendant
- Sufficient proximity between the defendant and third party
- Defendant created the danger
- The risk was on defendant’s premises
What two factors complicate ascertaining duty of care for public bodies?
- Statutory powers or duties
- Policy considerations
What is the two-stage test for breach of duty of care?
- Establish the standard of care expected of the defendant (law)
- Examine facts to see if the defendant fell below that standard (fact)
What is the Bolam test?
The standard of the ordinary reasonable man exercising and professing to have that special skill.
What is the standard of care for children?
The standard of a reasonable child of the defendant’s age carrying out that act.
True or False: The Bolam test applies when considering the breach of duty for failure to warn of risks.
False
What is the standard of care for individuals with illnesses or disabilities?
They are to be judged against the standard of a reasonable competent person in their condition.
What was held in the case involving the old schoolgirls and the play fight?
The schoolgirls couldn’t reasonably have foreseen any significant risk of injury.
In the case of the defendant who suffered a stroke before driving, what was the court’s conclusion?
The defendant was negligent and should have stopped driving upon realizing his impairment.
What was the outcome of the lorry driver case involving a hypoglycaemic attack?
The driver was held not liable as he was unaware of his impaired ability to drive.
What factors are relevant to determine if a defendant has fallen below the standard?
- Likelihood of harm
- Magnitude of harm
- Practicality of precautions
- Benefit of defendant’s conduct
- Common practice
- ‘State of the art’ defense
How does the likelihood of harm affect the determination of breach?
The more likely someone is to get injured, the more likely there will be a breach.
What was the ruling in the case where a blind person fell into a hole in the pavement?
The risk of causing injury to blind people was not small and couldn’t be ignored.
What does the magnitude of harm refer to in negligence cases?
The seriousness of injury, indicating greater care is needed for serious injury risks.
What was the court’s decision regarding the boxing regulation body failing to provide medical equipment?
They breached their duty due to the potential for serious harm.
What does the practicality of precautions consider?
How easily the risk could have been avoided and balancing cost against practicality.
What is the significance of common practice in negligence cases?
A defendant may escape liability if they acted in accordance with common practice.
What is the ‘state of the art’ defense in negligence?
Assesses defendant’s actions against the knowledge and practices accepted at the time of the breach.
What must a claimant prove to establish a breach of duty?
On the balance of probabilities, that the defendant breached the duty of care.
What does ‘res ipsa loquitur’ mean?
The facts speak for themselves, used when the only plausible explanation for injuries is negligence.
What are the conditions for ‘res ipsa loquitur’ to apply?
- The thing causing damage was under the control of the defendant
- The accident wouldn’t normally happen without negligence
- The cause of the accident is unknown to the claimant
What is the purpose of the factual causation ‘but for’ test?
To determine if the defendant’s breach caused the claimant’s loss.
What is the outcome if the ‘but for’ test is satisfied?
The claimant would NOT have suffered their loss were it not for the defendant’s breach.
What does the material contribution test address?
It applies when there is more than one cause of the claimant’s loss acting together.
What is the material increase in risk test?
It applies to industrial disease cases where the tortious act increased the risk of injury.
What was the outcome of the case involving the claimant who contracted dermatitis?
The tortious act materially increased the risk of contracting dermatitis.
What is apportionment in the context of negligence?
A calculation to apply once factual causation has been established to divide liability.
What is the principle of novus actus interveniens?
It refers to an intervening act that may break the chain of causation.
What are types of novus actus interveniens?
- Acts of God or natural events
- Acts of third parties
- Acts of the claimant
What breaks the chain of causation in the case of acts of God?
Exceptional natural events like lightning strikes or floods.
What is the legal test for whether a claimant’s actions break the chain of causation?
The claimant’s actions must be highly unreasonable.
What must be established regarding remoteness in negligence cases?
The type of damage suffered must have been reasonably foreseeable.
What is the chain of causation?
The link between the defendant’s negligence and the claimant’s injuries.
What does the term ‘remoteness’ refer to in legal terms?
The extent of the defendant’s liability based on the foreseeability of the damage.
In the context of negligence, what must be established to prove remoteness?
The type of damage suffered must have been reasonably foreseeable at the time of the breach.
What was the outcome of the case involving oil spill and fire damage?
The court held that the damage by fire was not reasonably foreseeable.
What type of damage was considered foreseeable in the case of the frostbite suffered by the claimant?
Cold-related injuries.
What was the ruling regarding the disease contracted through contact with rat urine?
The damage was not reasonably foreseeable.
What type of harm was held to be reasonably foreseeable following a road accident?
Psychiatric harm.
What is the ‘thin skull rule’?
The defendant must take the victim as they find them, regardless of the victim’s pre-existing conditions.
What are the four defenses to negligence claims?
- Consent (volenti non fit injuria)
- Illegality (ex turpi causa non oritur actio)
- Contributory negligence
- Necessity
What must be proven for the defense of consent to apply?
- Capacity to give valid consent
- Full knowledge of risks
- Agreement to the risk
- Voluntary agreement
What is ‘illegality’ in the context of negligence defense?
A complete defense applicable where the claimant has committed an illegal or immoral act linked to their loss.
What is contributory negligence?
A partial defense where damages are reduced due to the claimant’s own negligence contributing to the injury.
What is the purpose of the Law Reform (Contributory Negligence) Act 1945?
To reduce damages recoverable where the claimant’s own actions contributed to their injury.
What are the types of damages in personal injury claims?
- Compensatory
- Exemplary
- Aggravated
- Contemptuous
- Nominal
What does compensatory damages aim to do?
Put the claimant in the position they would have been in but for the tort.
What are general damages?
Compensation for future financial losses and non-quantifiable losses.
What does PSLA stand for?
Pain, suffering, and loss of amenity.
What is the significance of the Fatal Accidents Act 1976?
Allows dependents to claim for losses resulting from a deceased’s death.
What is an injunction?
A court order forcing the defendant to act or refrain from acting in a certain way.
What can be deducted from a claimant’s compensation?
- State benefits
- Contractual sick pay
- Redundancy payment
- Contributory negligence
What must a defendant prove for the necessity defense?
- Acting in an emergency
- Not at fault in causing the emergency
What are the criteria for assessing the reasonableness of a claimant’s actions in emergencies?
The circumstances of the emergency.
What is the role of the Judicial College in personal injury claims?
Provides guidelines for damages associated with different injuries.
