Negligence - Duty of care Flashcards
What are the 3 steps to establishing a negligence claim?
1) That there was a duty of care owed
2) That that duty was breached
3) Breach caused harm
What is an established duty situation?
situation where there is a confirmed duty of care - lawyer to client, parent to child, driver to pedestrian.
What is the test for a novel duty situation?
A) reasonable foresight of harm
B) Sufficient proximity of relationship
C) Fair, just and reasonable.
What is the difference between consequential loss and pure economic loss?
Consequential loss is loss resulting from injury like time off work. Pure economic loss is potential profits.
What is the rule for PEL
The general rule is no duty of care owed. But the exception is negligent statements.
What are the two conditions to satisfy negligent statement in PEL?
There must be an assumption of responsibility (1) and it must have been reasonable for them to act on D advice.
What factors must be proven for negligent statements of PEL?
1) Advisor knew purpose for advice
2) Advisor knew advice would be communicated
3) Advisor knew advisee would act without enquiry
4) Advisee did act to their own detriment.
What is the rule for Pure Psychological harm ?
No duty of care is owed unless (1) it is a medially recognised psychiatric illnes or shock induced physical injury and (2) caused by sudden shock.
In what scenario are primary victims owed a duty of care under PPH?
If physical harm is foreseeable
What must be satisfied for secondary victim to be owed a duty of care under PPH?
1) Foreseeability of psychiatric harm (normal fortitude).
2) Proximity of relationship (love and affection).
3) Proximity of time and space (immediately aftermath).
4) Proximity of perception (own senses).
What is the egg shell skull rule?
Must take the victim as they are in negligence even if they have a condition that makes the damage worse.
