Tort 2: Negligence Flashcards
What is the general outline for negligence?
Did D owe C a duty of care
Establish Standard of Care
Did D breach the duty owned
Did breach cause damage to C
Is there a defence for D
When is the there a duty of care?
Established duties of care
- case law has established situations where duty is owed
Novel Duty Situations
- if not established
- but foreseeable, proximate and fair, just & reasonable
What are some established duties of care?
- drivers to others on road
- doctor / patient
- teacher / pupil
- parent / children
- solicitor / client
- Employers / employees
- manufacturers of products / consumers
How is a novel duty of care established (elements)?
Foreseeability
- C must be a foresee victim
- D’s negligence must have created a foreseeable risk of harm to C
Proximity
- must be a relationship of sufficient proximity between C and D
Just Fair and Reasonable
- court will consider if it just fair and reasonable in all circumstances to impose a duty of care
- includes policy factors
Can you breach duty of care through omission
No unless:
Special relationship between parties
- parent/child
- assumed responsibility towards claimant
Control
- if D exercises control over C
Can someone ever be liable for actions of third party under their control of responsibility
Only in very limited circumstances
- parent and young child
- is likely to owe duty that to take reasonable care to prevent the child from causing harm to others
What duty of care does a rescuer owe?
Limited duty not to make the situation worse.
Includes situations where someone starts to rescue but then unreasonably abandons it.
- would have prevented others from rescuing
What is the standard of care once established that a duty existed?
General
- Standard of a reasonable person undertaking that activity
Objective Standard
- D’s own personal characteristics are not taken into account
What will the court take into account in assessing if D’s conduct fell below the reasonable standard of care?
Magnitude of risk involved in the activity undertaken by the defendant
- likelihood of harm
- seriousness of potential harm
The practicality of taking precautions to avoid the risk
- court will balance the practicability of taking precautions against risk in question
- will also consider social utility
What is the standard of care of professionals? How is breach assessed?
Standard of a reasonably competent member of that profession.
Assessed
- did they act in accordance with a responsible body of professional opinion
What is a doctors duty to warn of risk of treatment?
Must always warn patient of material risks in treatment so patient can make up own mind.
What is material depends on what the patient would consider important not professional opinion.
What is the standard of care for children?
Standard of a reasonable child of the same age and defendant.
Who has the burden of proof that duty was breached?
Claimant
What is Res Ipsa Loquitur and when can it apply?
When no evidence to explain how duty was breached court can infer breach from the circumstances. But can be rebutted by D.
Requirements:
- there must be an absence of any explanation for how the incident occurred;
- the thing which caused the accident must have been under the control of the defendant; and
- the accident must be such as would not normally happen if proper care had been taken.
Can a criminal conviction be used as evidence of breach of duty?
Yes if they are related to same incident
