tort of negligence

Question 1

what is tort of negligence

Answer 1

when someone is careless and it causes someone harm to someone else

Question 2

succeeding in action for negligence (3 elements)

Answer 2

1. defendant owed claimant a duty of care
2. defendant breached that duty of care
3. claimant suffered loss or damage as a result of breach of duty

Question 3

how to assess duty of care

Answer 3

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?

Question 4

what is duty of care

Answer 4

A legal obligation requiring individuals to act with reasonable care to avoid foreseeable harm to others.

Question 5

duty of care 1. reasonable foreseeability

Answer 5

foreseen a risk of damage?

Question 6

duty of care: 2. proximity

Answer 6

relationship between defendant and activity harming claimant

Question 7

restricted claims using proximity/fair, just reasonable

Answer 7

1. against public bodies
2. psychiatric injury
3. economic loss

Question 8

what is a breach of duty

Answer 8

defendant fails to meet standard of care expected under circumstances

Question 9

what is the standard of reasonable care

Answer 9

what would a ‘reasonable person’ have done in the defendants situation

Question 10

exceptions to the reasonable person rule

Answer 10

• children: set by reference to age
• professionals : set by reference to relevant profession

Question 11

what determines whether defendant has fallen short of reasonable person standard

Answer 11

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)

Question 12

factors relevant to cost benefit analysis of breach of duty

Answer 12

1. probability of harm
2. potential seriousness of damage
3. practicality/cost of protection
4. potential benefits of the risk
5. common practice in the relevant field

Question 13

how to prove breach of duty

Answer 13

‘on balance of probablities’
‘ res ipta loquitor’ things speak for itself

Question 14

what is causation

Answer 14

If claimant can provide breach of duty, court will ask whether breach caused claimants loss/damage

Question 15

3 aspects to causation

Answer 15

factual causation
legal causation
remoteness of damage

Question 16

what is factual causation

Answer 16

“but for” defendants act, would the claimant have suffered?

Question 17

what is legal causation

Answer 17

if factual causation established, court considers whether defendant was legal

Question 18

what is remoteness of damage?

Answer 18

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

Question 19

what are defences?

Answer 19

even if able to claim successfully, insuccessful if able to prove defence (3)

Question 20

3 types of defences

Answer 20

1. contributory negligence
2. consent
3. illegality

Question 21

what is partial/complete defence

Answer 21

reduce extent of defendants liability
extinguish completely defendants liability

Question 22

what is contributory negligence

Answer 22

partial defense
defendent needs to establish claimant did not take reasonable care

Question 23

what is consent in defence

Answer 23

full defence
‘volenti non fit injura’ no harm is done to one who concents
applied where claimant consented in some way

Question 24

what is illegality in defence

Answer 24

person committing crime should not sue for damages if injured in result of doing so

Question 25

what is a pure economic loss

Answer 25

financial loss that does not directly result from personal injury or damage to property

Question 26

when is economic loss recoverable/irrecoverable?

Answer 26

irrecoverable: caused by negligent act
recoverable: caused by negligent statement/advice

Question 27

what are the hedly bryne principles

Answer 27

duty of care not to cause economic loss

Question 28

what are the 4 principles of hedly bryne

Answer 28

a. special relations
b. defendant voluntarily assumed a responsibility to claimant
c. claimant relied on defendants advice
d. reasonable for party to have relied on advice