Negligence - Duty, Causation, and Defences Flashcards
What are the key elements for the tort of negligence to apply?
- A owes B a duty of care
- A breaches this duty
- The breach causes damage to B
A defendant cannot exclude liability for personal injury or death resulting from negligence when they’re acting in what?
Acting in the course of business
What are the three requirements needed for a court to imply a novel duty of care?
- C is a foreseeable claimant
- Relationship of sufficient proximity between C and D
- Fair, just, and reasonable to impose a duty on D
What are the four exceptions to the rule that there is no liability for omission/failure to act?
- Special relationships
- D has control over victim
- Harm is caused by third party under D’s control
- Rescuers who make the situation worse
What type of standard is the duty to act with reasonable care?
Objective standard
In assessing whether D’s conduct fell below a reasonable standard of care, the court will balance what 2 factors?
- Magnitude of risk in D’s activity
- Practicability of taking precautions to avoid such risk
In assessing the magnitude of risk involved in D’s activity, what two things will the courts look at?
- Likelihood of harm
- Seriousness of harm
When considering the precautions in which D ought to have taken to meet the standard of reasonable care, what is something the court’s will look at?
Social utility of D’s conduct
Doctors have a duty to _____ patients of material ____ of treatment
warn, risk
Generally, a child must act as a reasonable child of the same ____ would. However, a child doing _____ things may be held to an ____ standard
age, adult, adult
What is the doctrine of res ispa loquitur?
“The thing speaks for itself” - where the courts infer negligence from the nature of an accident or injury, even when there’s no evidence of how the harm came to be
What are the three elements required for res ispa loquitur to apply?
- Accident wouldn’t normally happen without negligence
- No explanation for the accident
- The thing causing the accident was under D’s control
What are the three elements of causation in negligence claims?
- But for test to be shown on a balance of probabilities
- No new act intervened between D’s breach and C’s injury
- C’s harm was reasonably foreseeable, i.e. not too remote
If an injury could have resulted from a number of different causes acting ________, C only needs to show that D’s breach ___________ ______ to C’s harm
together, materially contributed
When will a new intervening act (including C’s own action) break the causal chain between D’s breach and C’s injury?
When the intervening act is unforseeable
