Negligence Flashcards
(11 cards)
What are the 3 requirements for a duty of care established in Donoghue?
1) Foreseeability
2) Proximity
3) Fairness (policy considerations)
What is Lord Atkin’s ‘neighbour principle’?
You must take reasonable care to avoid acts/omissions which you can reasonably foresee would be likely to injure your neighbour.
Neighbour; persons who are so closely & directly affected by my act that I ought reasonably to have them in contemplation
Significance of Donoghue for scope of liability in negligence?
Donoghue extended scope of liability further, establishing a duty is owed even in the absence of a contractual relationship
Established the “reasonable foreseeability of harm” test
What are the 3 proximity requirements for a secondary victim claim for mental injury?
1) Proximity of relationship
2) Proximity in time & space
3) Proximity of perception
Breach of Duty of Care: What did Bolten v Stone establish?
Foreseeability alone insufficient—risk must be “likely or probable”
[Lord Dunedin] “People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.”
Breach of Duty of Care: What did Wyong Shire Council v Shirt establish?
Reasonability: weighs probability of risk & difficulty of taking alleviating action
“Perception of the reasonable man’s response calls for consideration of the magnitude of the risk & degree of probability of its occurrence, along with expense, difficulty & inconvenience of taking alleviating action”
Breach of Duty of Care: What did Blyth v Birmingham Waterworks Co establish?
Negligence requires failing to do what a “reasonable & prudent person” would → no duty to anticipate rare events
(reasonable precautions judged against ordinary conditions, not “freak” occurrences)
Breach of Duty of Care: What did Wagon Mound No.2 establish?
Liability lies where risk is both foreseeable & preventable → a “real risk” (even if small) must be acted upon if preventable without difficulty
→ Where measures to alleviate are easy & cost-free, ignoring risk is deemed unreasonable.
Distinguished Bolten v Stone where risk so minimal ignoring it was reasonable.
Breach of Duty of Care: What did Goldman v Hargrave establish?
Key Considerations:
1) Knowledge of hazard
2) Ability to foresee consequences
3) Ability to abate hazard
Duty of Care: an occupier must take reasonable steps to prevent spread of hazard (even of natural origin) if they know of risk & can foreseen harm to neighbours.
Standard of Care (‘individual burden’): Occupier’s individual circumstances (resources, physical ability, property size) must be considered.
How do both Wagon Mound Cases piece together?
Wagon Mound No. 1 emphasises requirement of foreseeability even in instances where damage is a ‘direct’ result of negligent conduct.
Wagon Mound No. 2 clarifies that even small foreseeable risks can attract liability if ignored.
What was the differing approach of the majority and dissent in Couch?
Majority: requires plaintiff to be subject to a ‘distinct & special risk’ (either as an individual or part of a class of people at heightened & identifiable risk)
Minority: adopted conventional proximity/foreseeability analysis → asserted that ‘special & obvious risk’ should not constrain duty → general risk posed by third party & ability to mitigate it should be sufficient in establishing duty.
