Negligence Flashcards
What is Negligence?
It is failing to exercise a reasonable amount of care.
It is the omission to do something which a reasonable person would do.
`Who is the claimant?
The person suing the other person. The one who brings the case
Who is the defendant?
The defendant is the person being sued for causing damage to the claimant. They are being accused for being negligent and breaching their duty of care.
What are the key elements of a Negligence Claim?
1) D must owe C a duty of care.
2) D must have breached this duty.
3) The breach must have caused some damage to C.
What is the lay out for a negligence problem question? list with questions
- OUTLINE CLAIM: Identify the parties and the claim
- DUTY: Does D owe C a duty of care?
- BREACH: What is the standard of care and did D fail to meet that standard?
- CAUSATION: Was D’s negligence the factual cause of C’s loss?
- REMOTENESS: Does anything break the chain of causation or is the type of harm too remote?
- DEFENCES: Can D rely on any defences to avoid or reduce liability?
How do you establish if D has a duty of care?
1) Look to see if its an established duty- coming from existing case precedent
2) if its not then it may be a novel situation- meaning its a completely new situation where no previous precedent is set.
How do you establish if D has breached their duty?
For this claim, it must be shown that D did fall below the expected standard of care
The Reasonable Person Test- Man on Clapham Omnibus
How do you know if D, in breaching their duty, caused harm to C?
It needs to be established that a harm resulted from Ds action to C
This can be done by Factual causation: Was the defendants actions a direct cause of Cs Loss?
And
Legal Causation (Remoteness): The loss suffered must not be too remote- there must be a close link between Ds actions and harm suffered.
