Tort - Duty of Care and Breach Flashcards
The Civil Process:
Evidence - case prepared, negotiations.
Trial court - prove duty, breach and damage, verdict.
Award of damages.
Negligence requires three elements:
A duty of care owed to the claimant by the defendant.
That duty of care being broken, as the standard of care has not been reached by the defendant.
That broken duty must have caused the loss complained of, and the loss must not be too remote a consequence.
Duty of Care:
A person is not responsible for every careless act that causes damages to others. A duty of care has to exist.
Duty of Care:
Donoghue v Stevenson:
Manufacturer owed a duty of care to the consumer.
Established the neighbour principle: we owe a duty of care to all our neighbours to make sure we don’t act, or fail to act, in ways that will harm them.
Duty of Care:
Situations where a person owes a duty of care to another.
E.g. employer to employee, doctor to patients, car driver to road users and pedestrian, householder to neighbours.
Duty of Care:
Caparo v Dickman:
Established three part test.
Is the harm reasonably foreseeable? Haley v London Electricity Board
Is the relationship sufficiently close? Caparo v Dickman, Watson v BBB of Control
Is it fair, just and reasonable to impose a duty of care? Kent v Griffiths, Hill v CC of Yorkshire
Breach of Duty of Care:
The court will use the reasonable man test and a range of other relevant factors.
Breach of Duty of Care:
The reasonable man test.
Negligence occurs when the defendant falls below the standard of the reasonable man.
Blythe v Birmingham Waterworks Co.
Breach of Duty of Care:
Objective Test.
Three groups to consider:
Learner - held to the normal standard, Nettleship v Weston
Specialist - should use specialist skills, R v Bolam
Child - held against someone their own age, Mullins v Richards
Breach of Duty of Care:
Factors considered relevant by court in deciding whether defendant has fallen below standard.
The degree of foreseeability: Roe v Minister of Health
The size of a risk: Bolton v Stone
The importance of the activity: Watt v Hertfordshire
Practicality of Precautions: Latimer v AEC
Potential seriousness of the injury: Paris v Stepney BC
Breach of Duty of Care:
Res Ipsa Loquiter
The thing speaks for itself. Moves burden of proof from claimant to defendant. Can only use it if defendant was in individual control at the time of the incident, there is an absence of all other evidence and it must have happened as a result of negligence - Scott v St Katherines Docks.
