Tort: Negligence Flashcards
What is the legal definition of negligence
A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant
Elements of Negligence
- Duty
- Breach
- Causation
- Damages
Examples of established duty of care
Dr/patient
Parent/child
Road users/other road users
Driver/passenger
Employer/Employee
Where might there not be a duty of care owed
-where harm is caused by public body
-caused by omission to act
-PEL
-PSH
Test for novel duty of care
Caparo test:
- reasonable foresight of some harm to claimant.
- Sufficient proximity of relationship
- It is fair, just and reasonable to impose a duty
is there liability for omissions
No, EXCEPT
-statutory duty
-contractural duty (employment)
-special relationship (eg. parent/child)
-duty not to make situation worse
-where person has positive duty to exercise control over 3rd party
Do public bodies owe a duty of care?
NOT to all individuals but can do public at large UNLESS
□ if police failure to apprehend a criminal created an exceptional risk, different from the risk to the public at large
□ OR when the police take someone into custody, they assume responsibility
Elements of breach of duty
- Question of law: What standard of care was the D expected to reach?
- Question of fact: did the defendants conduct fall below the required standard?
Tests for what standard of care defendant was expected to reach (breach of duty)
-Reasonable person test
-Skilled defendant
what standard will a child be expected to reach? (breach)
a reasonable child of their age
What does a reasonable dr have a duty to do? (breach)
Advise of:
1. alternative treatments
2. AND any material risk of harm arising from the recommended treatment ( A risk is material if the reasonable person would consider it so)
What standard will an inexperienced driver/Jr dr be expected to reach (breach)
no allowance made, same as normal dr/driver
How do courts determine if the Ds conduct fall below required standard? (breach)
-Magnitude/likelihood of risk
-Cost/practicality of precautions in relation to risk of harm
-Common precautions
-Current state of knowledge of defendant?
-Defendant to guard against ‘reasonable’ not ‘fantastic’(unexpected) possibilities
How do the courts decide if a professional breached their duty? (breach)
- Did D act in accordance with a practice accepted as proper by a responsible body of professionals? (Bolam)
- BUT in some cases, it cannot be demonstrated that the body of opinion referred to in the evidence is reasonable or responsible. (Bolitho)
Is lack of resources a relevant excuse for breaching a duty of care?
No
To what standard must breach of duty be proved? (breach)
Claimant must prove breach of duty on balance of probabilities
