tort of negligence Flashcards
what is tort of negligence
when someone is careless and it causes someone harm to someone else
succeeding in action for negligence (3 elements)
- defendant owed claimant a duty of care
- defendant breached that duty of care
- claimant suffered loss or damage as a result of breach of duty
how to assess duty of care
3 stage test:
1. harm or loss foreseeable
2. relationship of proximity w claimant and defendant?
3. fair just and reaosnable that impose duty on defendant?
what is duty of care
A legal obligation requiring individuals to act with reasonable care to avoid foreseeable harm to others.
duty of care 1. reasonable foreseeability
foreseen a risk of damage?
duty of care: 2. proximity
relationship between defendant and activity harming claimant
restricted claims using proximity/fair, just reasonable
- against public bodies
- psychiatric injury
- economic loss
what is a breach of duty
defendant fails to meet standard of care expected under circumstances
what is the standard of reasonable care
what would a ‘reasonable person’ have done in the defendants situation
exceptions to the reasonable person rule
- children: set by reference to age
- professionals : set by reference to relevant profession
what determines whether defendant has fallen short of reasonable person standard
cost benefit analysis,
- would preventing a foreseebale risk of harm have been less costly than letting it happen
if so, defendant probably shouldve defended it
(factors: probability of harm)
(potential seriousness of the damage)
factors relevant to cost benefit analysis of breach of duty
- probability of harm
- potential seriousness of damage
- practicality/cost of protection
- potential benefits of the risk
- common practice in the relevant field
how to prove breach of duty
‘on balance of probablities’
‘ res ipta loquitor’ things speak for itself
what is causation
If claimant can provide breach of duty, court will ask whether breach caused claimants loss/damage
3 aspects to causation
factual causation
legal causation
remoteness of damage
what is factual causation
“but for” defendants act, would the claimant have suffered?
what is legal causation
if factual causation established, court considers whether defendant was legal
what is remoteness of damage?
must not be too remote
- designed to call a halt to liability at a sensible point
- if claimant has weakness (eg breaks a bone but has brittle/soft bones), liable full extent
what are defences?
even if able to claim successfully, insuccessful if able to prove defence (3)
3 types of defences
- contributory negligence
- consent
- illegality
what is partial/complete defence
reduce extent of defendants liability
extinguish completely defendants liability
what is contributory negligence
partial defense
defendent needs to establish claimant did not take reasonable care
what is consent in defence
full defence
‘volenti non fit injura’ no harm is done to one who concents
applied where claimant consented in some way
what is illegality in defence
person committing crime should not sue for damages if injured in result of doing so
