Tort Law Flashcards
What is the current test for imposing a novel duty of care (The Caparo Test)?
1) Was there reasonable foresight of harm to the claimant?
2) Sufficient proximity of relationship between the claimant and the defendant?
3) Is it fair, just and reasonable to impose a duty?
The general rule is that there is no liability for omissions (a failure to act). What are the exceptions to this rule?
a) where you make the situation worse.
b) where there is a special relationship (employer/employee, parent/child etc)
What is the general standard of care?
The reasonable person test:
‘What would a reasonable person have done/forseen?’
Objective test
What is the test for the standard care of a skilled defendant?
The Bolam Test:
The defendant’s act/omission is judged according to the degree of skill/competence expected of a person who has the special skill (e.g., what a reasonable doctor would have done/foreseen)
So long as the defendant’s actions are supported by a reasonable body of professional opinion, they will not be deemed to have been negligent.
What is the standard of care for child defendants?
The conduct of a child will be judged against what can reasonably be expected of an ordinary child of the same age.
Standard of care for an under-skilled defendant?
A lack of skill will not be a defence where the individual was carrying out a task which requires a special skill.
E.g., a junior doctor cannot use their lack of experience as a defence if they were carrying out a task that they were not qualified/prepared to do.
What factors will the court take into consideration when determining if a breach of duty has occurred?
a) The risk created by the defendant’s activities; and
b) The precautions which the defendant ought to have taken in response to that risk.
Which party has the burden of proof in relation to proving a breach of duty?
The Claimant.
What is ‘res ipsa loquitur’ and when does it apply?
The claimant can apply this where there is no evidence of the breach of duty.
Three conditions must be met:
1) The thing causing the damage must be under the control of the defendant.
2) The accident must be such that it would not normally occur without negligence.
3) The cause of the accident is unknown by the claimant.
What happens to the burden of proof when ‘res ipsa loquitur’ applies?
The burden of proof transfers to the defendant.
The defendant must then proce that they were not negligent.
