Tort Flashcards
Duty of care?
There is already precedent of duty of care
Establishing a new one:
- Reasonable foreeablty - that the defendant failure to take care could cause damage to the claimant
- Proximity between claimant and defendant
- It is fair, just and reasonable for the law to impose a duty
Omissions
- there is no duty to prevent harm unless there is an established relationship between the parties.
Establishes relationship occur:”
- where there is control
- where there is assumption of responsibility
- where d creates a dangerous situation
When is there a general duty of care on third parties?
- Where there is a special relationship between D and C due to proximity
- Where there is a special relationship between D and third party due to proximity
- When someone creates a source of danger and it is reasonable foreseeable that the third party would interfere
- Where there is failure to take steps to stop danger created by third party
Breach of care
Standard of care has not been reached.
The standard of care - What would the reasonable man do?
Levels of standard of care
Medical - higher - did the doctor act in a manner accepted by a responsible body of medical professionals, if so was it logical to do so.
Children - lower - standard of reasonable person of that age
Learner - higher - judge on the reasonable competent thing they are learning
Illness - different - should stop themselves from doing something they can no longer do
Emergency - different - excessive care and skill reasonable in that circumstance, and public interest
State of knowledge - different - judge at the time of the incident
Other relevant facts when considering the standard of care
Cost of precautions
Social value
Likelihoood of harm
Seriousness of injury
Res Ispa loqitor
The thing speaks itself
- Control - whatever caused the damage must of been under the control of the D
- The damage would not normally occur without negligence
- Cause of accident is unknown
Civil evidence act
Criminal convictions can be used as evidence in civil proceeding
Burden on proof thus switches to defendant to prove they were not negligent
Factual causation of negligence
But for test
Exceptions to but for factual causation negligence
1.Mutiple potential causes - D act or omission must be substantial
2. Materially contributed to harm
3. Materially increase the risk of harm
4. Continuing claim - when dealing with consecutive cause of harm, where all pass the but for test, the original d is liable for the harm.
5. Impossible to use but for test - all liable
6. Loss of chance - will be liable unless you chance was already below 50% - then D is unlikely to be liable
Legal causation - negligence
- Was the harm too remote - was the type of damage reasonably foreseeable?
- Was there any intervening act - only will break chain of causation if it is unforeseeable
Remedies for personable injury claims
Pecuniary loss - pure economic loss and consequences economic loss - definitions
Pure economic loss is financial loss resulting from the harm cause by the negligent act
Consequential economic loss is the financial loss sustained due to another harm caused by negligence
When is PEL and CEL recoverable?
Pure economic loss - is not recoverable
Consequential economic loss is recoverable because the loss resulted from physical harm to property or claimant due the negligent act
What are the exception of pure economic loss being unrecoverable?
When a negligent misstatement exists
- Where a special relationship of trust and confident exists between the parties
- Where the party preparing a statement has assumed the risk - by expressly or impliedly
- Where there has been a reliance on information or statement
- Where reliance on the statement was reasonable
Claims for psychiatric harm remedies
The injury must be medically recognised and diagnosed
The claimant must be either a primary or secondary victim.
Primary victim
A primary victim is one that is in the physical zone of danger or reasonably believes they are in danger and it harm was foreseeable.
Secondary victims
Reasonable foreseeable that someone of reasonable fortitude would suffer some pysicatric injury
Alcock test
A. Close tie of love and affect
2. Close in time and space to the aftermath
3. Shock was witness by their own sense
What further categories can claim psychiatric harm
- Resucers - only if they were exposed to physical danger
- Witnessing the destruction of property - recoverable
- Involuntary involvement - there has to reasonably held belief that the claimant has been involuntarily involved in another person death or injury
- Assumption of responsibility - for the claimant not to suffer physicatric harm
- Anxiety of developing future disease - not recoverable
What are general defences of tort?
- Consent - complete defence
A. C had full knowledge of the nature and extent of the risk
B. The claimant voluntarily accepted the risk - Contributory negligence - partial defence
- Illegality - complete defence - there has to be connection of the claimant illegal activity and their injury
Breakdown Contributory negligence
- Did the claimant fail to exercise reasonable care for their own safety
- Did the failure contribute to their harm
- To what extent shall there damages be reduced
-25% if injuries would of been prevented and 10% if injuries would be less severe
Children - the younger the child the less likely to be held as CN - under 10 cannot be held as CN
Employers - if they weren’t following the rules than likely to be held as CN
Rescuers - judged on a reasonable rescuer. Courts are very reluctant to do this
Vicarious Liabilty - elements
Someone else being liable for another negligent act
- Employer and employee relationship must exist
- Employee must have committed a tort
- Tort was committed in the course of employment
Who is an employee? Who is an independent contractor
- Does the employer have control over the individual? If yes - employee
- Is the individual integral to the business or just an accessory to it? If integral - employee
- Get wages? Will work under the control of the employer? And the provision of the contract are consistent with a contract of employer? - if yes - employee
What constitutes as - in the course of employment?
- Authorised acts - vicariously liable
- Authorised act in authorised manner - vicariously liable
- Prohibited act - that furthers the employees business - vicariously liable
- Prohibited act which does not fall out of the scope of employment, only falls out of how to do it - vicariously liable
- Unlawful acts - close connection test - is there a link between the unlawful act and the activities the employee should be carrying out - if yes then vicariously liable
