Negligence

Question 1

Definition of Negligence

Answer 1

A breach of a legal duty of care that results in harm undesired by the defendant

Question 2

Elements of negligence

Answer 2

Duty
Breach
Causation
Defences

Question 3

Duty of care - rule

Answer 3

D must have owed a legal duty to take care for C
- establish duty or novel duty

Question 4

When will a duty be owed if no established duty?

Answer 4

1. Loss was reasonably foreseeable
2. Proximate relationship betwen C and D
3. Fair, just and reasonable to impose a duty
   - floodgates, deterrance, D’s resources, public benefit

Likely duty: D individual + positive act + harm is property damage / PI

Unlikely duty: D is a PA or omission or harm is PPH / PEL

Question 5

Duty for omissions

Answer 5

No duty to avoid omissions unless:
1. D intervenes and makes situation worse; or
2. Special relationship between C and D
- control (employer / school / parent / teacher / police to prisoner)
- statutory duty (OLA)
- contractual duty
- risk is created by D

Question 6

When may D have a duty to prevent 3rd party causing harm to another?

Answer 6

Not liable unless:
- proximity between C and D (contract / police informant)
- proximity between D and 3rd party (3rd party under D’s care and control)
- Risk was on D’s premises (know of danger + harm foreseeable)

Question 7

Breach - rule

Answer 7

D fell below required standard of care

Question 8

2 stage test to determine whether D breached duty of care

Answer 8

1. Standard of care D should have exercised (D should take as much care as would be taken by a reasonable person)
2. Whether D’s conduct fell below required standard of care

Question 9

Factors court will consider when assessing whether D fell below reasonable standard of care

Answer 9

• Magnitude / risk of harm
• Action have public benefit?
• Cost of precautions
• Common practice (if compliant strong evidence not negligent)

Question 10

When will court infer negligence without evidence (res ipsa loquitur)

Answer 10

1. Thing causing damage is under D’s control or some for whom D is responsible
2. Accident would not normally happen without negligence
3. Cause of accident is unknown (no witnesses)

D can rebut by showing how the accident actually happened or that they used reasonable care at all times

Question 11

Causation - rule

Answer 11

C must show D caused harm on balance of probabilities (more than 50% chance)

Question 12

In clinical neglience cases, when is causation satisfied?

Answer 12

If C had been advised they woudl not have had treatment or they would have delayed treatment

Question 13

When will material contribution test be relevant and what is the test?

Answer 13

1. More than 1 cause (sequential or simultaneous)
2. Acted together to cause loss
3. Medical science cannot establish probability of negligence’s contribution

Did D’s breach materially contribute to damage / injury (more than negligble)

Question 14

When will material increase in risk test be relevant?

Answer 14

Mesothelioma

Question 15

Divisible and Indivisible Injury

Answer 15

Divisible (absestosis): D is liable for proportion of damage they cause only
Indivisible (common): Injury cannot be divided up (e.g. broken leg) - D is liable for all but can recover contribution

Question 16

Intervening acts

Answer 16

D not liable if event arises after accident which breaks the chain of causation:
- Act of 3rd party if highly unforeseeable (not instinctive)
- Medical treatment if grossly negligent
- Act of C is entirely unreasonable
- Act of God

Question 16

Remoteness rule and exceptions

Answer 16

The type of damage must have been reasonably foreseeable at the time D breached their duty of care

Similar in type: D is liable even if precise way it occured was not foreseeable

Egg-shell skull: D is liable even if extent of damage was unforeseeable

Question 17

Defence of consent

Answer 17

1. Capacity to consent
2. Full knowledge of nature and extent of risk
3. C agreed to risk of injury
4. C’s agreement was voluntary no duress or fear

Unavailable if: car passenger
Unlikely to succeed if: rescuer, patient, employee, sportsperson

Question 18

Defence of illegality

Answer 18

1. C is committing an illegal act at time they suffer loss caused by D
2. Criminal activity causes the loss (not incidental / contextual)
3. Criminal activity must be serious

Question 19

Contributory negligence

Answer 19

1. C failed to take reasonable steps for their own safety; and
2. C’s carelessness contributed to damage suffered

seatbelt
- if no effect: 0% reduction
- if reduced injury: 15% reduction
- if avoided injury: 25% reduction

Question 20

Necessity

Answer 20

1. D acted in emergency to prevent death or serious injury
2. D did not cause emergency
3. D acted reasonably