Tort (Negligence) Flashcards
Outline the 5 stages of a Tort (Negligence) Claim?
(1)
(2) (a) (b)
(3) (a) (b)
(4)
(5)
(1) EXISTENCE OF DUTY
(2) BREACH
(a) Standard of Care
(b) D fall below ‘Standard of Care’
(3) CAUSATION
(a) Factual causation
(b) Legal causation
(4) REMOTENESS
(5) DAMAGES
What are the 5 main LOSSES in Tort of Negligence?
(1) PI
(2) Psychiatric Harm
(3) Property Damage
(4) Consequential Economic Loss (CEL)
(5) Pure Economic Loss (PEL)
What is ‘Consequential Economic Loss’ (CEL)?
ECONOMIC LOSS resulting from:
(1) PI
(2) Property Damage
E.g. loss of wages from broken arm, loss of revenue from shop closed due to damaged room
What are 4 common scenarios a DUTY OF CARE arises in?
(1) Road user and road user
(2) Doctor and patient
(3) Employer and employee
(4) Manufacturer and consumer
What is the STANDARD OF CARE for a ‘Normal’ (i.e. nor professional person)?
OBJECTIVE - Did D behave like a ‘REASONABLE PERSON’
What is the STANDARD OF CARE for a ‘Professional Person’?
did D behave like a ‘REASONABLY COMPETENT PROFESSIONAL’ (e.g. lawyer)
When assessing if D fell below the STANDARD OF CARE:
Factors (a) and b are BALANCED AGAINST factors (c) and (d). What are the factors?
(a) Likelihood of Harm
(b) Likelihood of SERIOUS injury
VS
(c) Practicality of precautions
(d) Benefit of D’s conduct (i.e protest ‘life, limb or property’)
(1) What is the primary test of FACTUAL CAUSATION?
(2) What standard is this assessed on?
(1) ‘But for’ Test - ‘but for’ D’s negligent act, C would not have suffered the loss
(2) Balance of Probabilities
What is the test of FACTUAL CAUSATION when there are
(1) 2 or more causes (of loss)
(2) Acting Together
C’s negligent act ‘MORE THAN NEGLIGIBLE’ cause of loss
What are the 3 possible ‘Intervening Acts’ that would mean there was not LEGAL CAUSATION?
(1) Acts of God / Natural Events
(2) Acts of Third Party
(3) Acts of Claimant
There are 3 possible ‘Intervening Acts’ that would mean there was not LEGAL CAUSATION. What condition(s) must be reached for these to break the chain?
(1) Acts of God / Natural Events
(2) Acts of Third Party
(3) Acts of Claimant
(1) Exceptional + NOT Foreseeable
(2) HIGHLY Unforeseeable
(3) HIHGLY Unreasonable
What are the 2 questions for determining if a LOSS is too REMOTE?
(1) Was the Loss REASONABLY FORESEEABLE
(2) was the TYPE of Loss FORESEEABLE (type = PI, PD)
In assessing REMOTENESS:
(1) What rule applies with regard to the Victim?
(2) What does this mean?
(1) ‘Thin Skull Rule’
(2) Take the victim as you find them
What is the purpose of ‘Damages’ in a Tort (negligence) claim?
Put C in position they would have been in if the NEGLIGENT ACT had not occurred
In a PI claim (NOT resulting in death), what 2 types of DAMAGES can be claimed?
(1) GENERAL damages
(2) SPECIAL damages
