Negligence - Duty of care General principle and Public Policy Flashcards
(19 cards)
Negligence definition
Negligence is an omission to do something that a reasonable guided would do or doing something a reasonable man would not do in the same circumstances
Hurdles in negligence
Duty of Care Owed Duty of care breached Claimant suffered damages the breach caused the damages damages not too remote ( Wagon mound)
Avoiding Negligence definition
you must take reasonable care to avoid acts or omissions which you can reasonably foresee damage occurring
Neighbor Principle
Someone who is so closely and directly affected by the act/omission that you should reasonably have them in your thoughts when thinking about the act or omission
Two stage test duty of care in negligence
sufficient relationship of proximity based upon foreseeability’ between plaintiff and defendant; and considerations of reasons that there should not be a duty of care
Three stage Test duty of care in negligence
- That harm was reasonably foreseeable
- That there was a relationship of proximity
- That it is fair, just and reasonable to impose a duty of care
Definition of Foreseeability?
The defendant should have foreseen that the act or omission could result in damage occurring
What is Proximity
Relationship born from proximity (prev know as Neighbor test)
When 3 Stage test is not used
The Caparo test is not needed when a duty of care has been assumed
Fair Just and reasonable - Public policy considerations
Floodgates being opened
Fair Just and reasonable -Standard now
Caparo not a blue print - Look for analogies from existing case law - extend duty of care incrementally
Police Activities Acts provides
Police not immune from negligence but they should also not be fettered in routine investigation by the treat of litigation - Can be held liable in negligence if it was known that there was a real and immediate risk
Police Activities Omissions
Police in same position as all other defendants and will generally not owe a duty unless the duty was assumed
Rescue services (excluding ambulance) Duty
Duty owed in positive acts but not omissions
Duty Ambulance Service
A duty is assigned between the service and the specific person called to
Public Bodies
No assumed duty Robinson should be followed
When is there a Liability for omissions? What are the 4 standards for Liability for omissions?
No duty to prevent persons deliberately inflicting damage on another person 4 exceptions,
1 If there IS a special relationship between the parties (ie a contractual relationship)
2 is there a special relationship between the parties ( Akin to a contract)
3 Where the defendant causes or permits a source of danger to be created which is then interfered by a third party
4 where the defendant knew or had means of knowing that a third party was creating a danger and failed to take reasonable steps
Liability for omission when there is an assumed duty
If you have assumed a duty to someone then you can be held liable for omissions
Liability for acts of third parties
No liability can attach to A for damages sustained to B by the wrongdoing of C except if there is a special relationship between A & C such as A is C’s employer (Vicarious liability)
