Unit 1: Intro and Negligence: duty of care and breach of duty Flashcards
Tort
Essentially means ‘wrong’. A tort involves the infringement of a legal right and it gives rise to a claim in the civil courts. Based upon affording specific protections for particular types of harm.
Tort distinguished from crime
Tort claims are brought by the injured person who will be seeking a remedy to compensate them. Criminal actions are brought by a public official rather than the victim. Tort -> civil courts. Crime -> criminal courts.
Tort distinguished from contract
In tort, liability does not depend on any consensus between the parties; it is determined by rules which dictate whether the defendant’s wrongdoing constitutes a tort. Tort has a wider potential scope of liability - owed to the world at large.
Functions of the law of tort
Compensation, deterrence, justice, vindication of rights.
Issues with claiming compensation
Time commitment, high cost for litigation, and can the defendant even afford to compensate?
Legal redress
Money that someone pays you because they have caused you harm or loss.
Standard of proof in civil cases
On the balance of probabilities.
Why is the standard of proof different in civil cases to criminal cases?
Mainly because in criminal cases a defendant risks losing their liberty if found guilty, but in a civil case the defendant will usually only face a financial penalty.
Limitation period in tort law
Generally 6 years from when the cause of action arises, though there are special cases. Limitation Act 1980.
Structured approach for analysing negligence problems
- Identify all the possible claimants and defendants
- Identify the nature of each C’s loss
- Consider which tort(s) may be relevant
- Apply the elements of the relevant tort.
Negligence
A breach of a legal duty of care owed to the claimant that results in harm to the claimant, undesired by the defendant.
Public services duty of care
See image.
The four hurdles for negligence claims
- Duty (Does the defendant owe the claimant a legal duty to take care?)
- Breach (Is the defendant legally at fault by not meeting the standard of care expected of them?)
- Causation (Did the breach cause the claimant’s loss?)
- Defences (Can the defendant rely on any defences?).
When does Caparo apply
These three elements need to be established:
1. Reasonable foresight of harm
2. Proximity of relationship
3. Fair, just and reasonable to impose a duty. (possible policy implications? eg discouraging volunteers)
Misfeasance
Doing something to cause harm/wrongdoing.
Nonfeasance
Not doing something or failing to act, and this failure to act has caused harm/wrongdoing.
Who is required to prove breach of duty?
The burden of proof is on the claimant to prove breach of duty.
Res ipsa loquitur
- The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible
- The accident must be such as would not normally happen without negligence
- The cause of the accident is unknown to the claimant - so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care
Scott v London and St Katherine Docks Co (1865)\
Factors in determining standard of care
- How much risk did the activity involve how should the defendant have responded to that risk?
- How easy would it be to take precautions, and what would the cost be?
- How likely was it to cause an injury, and how serious would it be?
Current state of knowledge
Look at the knowledge when the accident occurred, not current knowledge when the case is being heard, as in Roe v Ministry of Health [1954].
