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Flashcards in Negligence Deck (15):
1

What does the claimant need to prove to claim negligence?

- duty of care owed by defendant
- breach of duty
- breach caused the damage suffered by claimant

2

What is tort?

Wrongful act or infringement of right that is not under contract leading to legal liability

3

Who is a duty of care owed to?

a 'neighbour' - i.e. somebody not under contract but someone directly affected by the act

4

What are the 4 tests that determine whether a duty of care exists?

- damage reasonably foreseeable by defendant at time?
- sufficient proximity (closeness) between the parties?
- is it fair, just and reasonable to impose a duty of care?
- is there a matter of public policy which exists?

5

What is the principle of 'res ipsa loquitor'?

- the fact that there is harm shows there was a breach
- 'this injury is a fact that a breach occurred'

6

How is a defendant judged as a 'reasonable man'?

- if they have a skill, the reasonable man has that skill
- lack of skill irrelevant
- judged on knowledge at the time (hindsight irrelevant)
- courts will consider advantage and risk
- emergency taken in to consideration
- higher care for more vulnerable claimant

7

Loss caused by a breach

- claimant has to prove loss or damage was a direct consequence of the breach
- caused by something or someone else then no liability to defendant
- if loss would have been suffered regardless then no claim

8

Can a loss be claimed on the basis of professional advice?

Can claim purely for financial losses if there is a 'special relationship' between parties
- defendant is in business of giving professional advice
- advice given in business context
- knows, or should know, claimant would rely on it

9

What is the principal remedy in any case involving negligence?

Damages to put claimant in position they would be in if negligence hadn't happened

10

What are the 3 main defences to a charge of negligence?

- contributory negligence
- volenti non fit injura
- exclusion clauses

11

Define contributory negligence

- claimant partly responsible for losses suffered
- damages reduced

12

Describe volenti non fit injura

- claimant freely consented to risk or harm
- no damages awarded

13

Describe exclusion clauses

- can limit/exclude liability
- must pass legal tests for exclusion clauses

14

What is vicarious liability?

Where one person can be liable for another's actions

15

What are examples of vicarious liability?

- employer for employee acting in course of business
- principal for agent acting within limits of his authority
- partnership in partners acting in course of business