Negligence Flashcards
Definition of Negligence
Negligence is a Tort. In business law the central focus is on ‘duty of care’.
Definition of a Tort
A tort is a civil wrong. Action in breach of tort arise from breach of duty imposed by law. A tort is different from a crime.
When would liability for negligence arise?
This will only arise where the tortfeasor owed the victim a ‘duty of care’
What are the three elements to the tort of negligence, which the claimant must prove?
(i) that the defendant owed him a duty of care;
(ii) that the defendant breached that duty; and
(iii) that damage to the plaintiff resulted from the defendant’s breach of duty and which is not too remote
All three elements must be present for a successful claim.
In what leading case did Lord Atkin define the ‘neighbour principle’?
Donoghue v Stevenson (1932)
Give the definition from Lord Atkin of the ‘neighbour principle’
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.
Give the definition of a ‘neighbour’ as per Lord Atkin
“persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”
Name three situations where duty of care would be denoted
Driving a car
Performing a surgical operation
Giving Financial Advice
What is the ‘but for’ test?
Would the damage have occurred but for the act or omission of the defendant? If yes, then the defendant should not be liable.
In what case could the ‘but for’ test be demonstrated?
Barnett v Chelsea and Kensington Hospital (1969)
How was the neighbour princple expanded on in:
Caparo Industries Plc v Dickman (1990)
The neighbour principle was later elaborated on in by affirming that it should be “fair, just and reasonable that the law should impose a duty” of care (sic).
What is the 3 part test in:
Caparo Industries Plc v Dickman (1990)
- Was the damage to the claimant reasonably foreseeable?
- Was the relationship between the claimant and the defendant sufficiently proximate?
- Is it just and reasonable to impose a duty of care?
On the facts of the case there was insufficient proximity as the auditor Dickman owed his duty of care to the company, not to Caparo Industries who purchased the shares based on his reporting.
What is meant by “reasonably foreseeable”?
List 3 answers
Provided the harm or damage is foreseeable (i.e. likely to occur) then the scale of damage is irrelevant.
Statistical probability is a factor, if the likelihood is low and sufficient precautions have been taken to prevent harm.
If the harm or damage is so remote from the original action it cannot be the basis of liability.
What is meant by “reasonably foreseeable”?
List the two cases from case law
In The Wagon Mount No 1 (1961) it was held that provided the harm or damage was foreseeable (i.e. likely to occur) then the scale of damage was irrelevant.
In Bolton v Stone (1951) it was held statistical probability is a factor, if the likelihood is low and sufficient precautions have been taken to prevent harm.
Define ‘Contributory’ negligence
This refers to situations where the plaintiff may be responsible, in part, not for causing the harm but for exacerbating by some irresponsible action.
This can be used as a partial defence whereby the courts can apportion loss between the parties.
