Flashcards in Negligence Deck (15):
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
What is tort?
Wrongful act or infringement of right that is not under contract leading to legal liability
Who is a duty of care owed to?
a 'neighbour' - i.e. somebody not under contract but someone directly affected by the act
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?
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'
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
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
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
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
What are the 3 main defences to a charge of negligence?
- contributory negligence
- volenti non fit injura
- exclusion clauses
Define contributory negligence
- claimant partly responsible for losses suffered
- damages reduced
Describe volenti non fit injura
- claimant freely consented to risk or harm
- no damages awarded
Describe exclusion clauses
- can limit/exclude liability
- must pass legal tests for exclusion clauses
What is vicarious liability?
Where one person can be liable for another's actions