Tort - Negligence: Duty, Breach and Causation of Damages Flashcards
Liability based on fault
Fault = careless conduct by defendant
Duty of Care
Onus is on claimant to prove defendant owed duty of care
There are certain relationships where there is an established duty of care
Novel Duty Situations
If duty of care cannot be proved, claimant can look to novel duty situations
Three criteria to establish duty of care:
- Foreseeability
- Proximity
- Fair, just and reasonable
Omissions to Act
General rule against imposing duty of care in situations where there is an ommission to act
Exceptions:
- High degree of control over claimant
- Assumed responsibility for claimant’s well-being
- Regarded as having created or adopted a risk
General standard of care
Reasonable person standard
Special standards of care
- Children; reasonably prudent child of that age
- Professionals; ordinary skilled person in that profession
Breach of duty
Balancing test:
- Magnitude of risk vs burden of taking precautions against the risk
- Magnitude of risk vs social utility of the conduct
Res Ipsa Loquitur
The thing speaks for itself
Allows the court to infer that D was in breach of duty
Three requirements:
- Cause of incident unknown
- Thing causing damage under sole control of D
- Type of occurence would not happen without negligence
Causation
D’s breach of duty caused the claimant’s harm
No intervening acts broke chain of causation
Harm not too remote
Causation in Fact
‘But for’ test - but for D’s actions damage would not have occurred
Causation in Fact when multiple causes
D’s act materially contributed to harm
Causation in Law
Break in chain of causation
Remoteness of damage - was harm reasonably foreseeable?
Contributory Negligence
Partial defence
Claimant has contributed to injury through their own negligence
Damages will be reduced by an amount which is fair and reasonable taking into account the claimant’s negligence
Egg Shell Skull Rule
An exception to the general rule that the damage must have been reasonably foreseeable
If C suffers from a pre-existing condition which causes the effect of D’s negligence to be more extensive or severe than might have been reasonably foreseeable the court is prepared to decide it was foreseeable
“the defendant must take their victim as they find them”
Similar in type rule
An exception to the general rule that the damage must have been reasonably foreseeable
C suffers the type of harm which would be reasonably foreseeable but the manner in which it occurs is unforeseeable
