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? If not, go to 2 [caparo 3-stage test]
- 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 through omission and failed to take steps to mitigate danger
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?
1. Sufficient proximity between the claimant (victim) and defendant
* Victim is an identifiable victim + defendant assumed responsibility for the claimant’s safety
* Yorkshire ripper case
* Landlord tenant case
2. Sufficient proximity between the defendant and third party (party that caused the harm)
* Mental health authority case - was patient under the authority’s care at the time?
* Yorkshire ripper case
3. Defendant created the danger
* D creates or allows the creation of danger, even though it was the third party’s action that actually caused the damage
4. The risk was on defendant’s premises
* If D knows or ought to know of danger on their property, they may owe a duty to anyone who is damaged bc of the danger
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.
