Negligence and the Duty of Care Flashcards
Proximity
The relationship between two parties or the correspondence between the consequences of ones actions on affecting the other.
Causation
Whether or not the defendants conduct caused the damage. Determined by the “but for the actions of another” test
Foreseeability
The likelihood of injury occurring if care was not exercised
Reasonableness
Was the possible injury reasonable considering the circumstances of the situation?
Vicarious Liability
A form of strict liability in which stems from a contract, where a ‘higher’ authority must be held liable for the damages even though they were not negligent.
Ex. A teacher is found negligent towards a student, the school board must be held accountable.
Duty of Care
A duty of care can be established if there is
- Proximity
- Casual (but for the negligence of another)
- Time and Space
- Special Relationships - Foreseeability
- Reasonable person test
- was it foreseeable that loss would be incurred if care was not taken? (Neighbour principle)
Breach of Care
A breach of care if established if there was an omission of one’s duty of care.
Apply the reasonable person test as it relates to:
- The probability that harm would occur if care was not taken
- The likely seriousness of the harm
- The greater the risk of injury, the greater the duty of care.
- Was the act meant to benefit the participants?
- Has the standard procedures been followed and are these lawful?
- Special characteristics of defendant
- Has the legislation been followed?
Assumption of risk
Volenti non fit injuria–> To one who is willing, no wrong can be done. If the plaintiff acknowledges the risk of injury and does it freely anyway, the defendant cannot be held liable
Contributory Negligence
A situation in which the plaintiff failed to exercise reasonable care for their own protection. It is a partial defence in which money will be deducted because said has contributed to the injury.
Omission
The failure to act or the lack of exercising the same care that a reasonable person would have.
Remoteness
The limiting factor on compensation which allows them to only claim damages that were foreseeable by the negligent act: not too remote.
Explain the legal concept of neighbour through relevant case law, including Donoghue vs Stevenson (1932)
- The neighbour principle was defined following The Donoghue v Stevenson (1932) case, where a customer at a cafe sued the manufacturer of a drink when she suffered shock at seeing snail remains in their bottle.
- The neighbour principle states that one must exercise reasonable care towards a neighbour where outside the bounds of a contract.
- It provides a starting point for proving a duty of care.
Explain defences available to a defendant in Negligence
The defendant can plead to three defences
- Contributory Negligence
- Volenti Non-Fit Injuria
- Inevitable accident( Heart Attack)
Damages of Negligence
Damages must be:
- Personal injury or physical damage to property/economic harm (nervous shock) or pure economic loss.
- The damage must be made by the defendants breach and as a direct result of their negligence: the damage must not be too remote
- The damage must be allowed by the law
What is the main piece of legislation for negligence and describe how it influences the elements of negligence.
The Civil Liability Act 2003 (QLD) was an Australian-wide review of the law of Negligence. It codifies aspects of the common law from precedent so that it can be applied to negligence, as well as sets out specific changes.
Section (9) of the act: General Principles–> The conditions for a breach ( See Flashcard)
