Tort Of Negligence Flashcards
(18 cards)
What is the law of tort?
Defendant wrongful act or omission which causes injury, loss or damage, and the damage is such that it attracts the liability of law
Explain the Donoghue and Stevenson case
Snail in drink, manufactured owes a duty of care as she was the end user, and it was reasonably foreseeable that she would be affected
Explain the impact of the donoghue and Stevenson case
Before this decision donoghue would have no recourse, established principle of product liability(the neighbour principle), owes a duty of care to the ultimate consumer, springboard for development of negligence in all forms, extended duty of care
Duty of care
Has the duty been previously established in previous case law?
If not, harm must be reasonably foreseeable, fair just and reasonable to impose a duty
Example of held not liable: ‘Caparo v duck man’
Breach of that duty
Has the duty of care been breached?
Example: ‘Bolton v stone’ (cricket case)
Damage caused by the breach?
Has the claimant suffered loss or damage as a result?
Use but for test to establish causation: (but for the defendants act, would the claimant have suffered harm?)
Causation
The third element is that the claimant must show that he suffered loss or damage as a result of the breach
What happens if there has been a break in causation?
Act of god
Act of a third party
Act of the claimant
What is the but for test?
Did the defendants negligence cause or contribute to the injury or loss sustained?
How to decide if there is a breach of duty?
Factual causation: did the defendants breach of their duty or care cause the claimants loss or injury as a matter of fact?
Legal causation: even if the defendants breach of their duty of care caused the claimants loss or injury as a matter of fact, should it be treated as be cause as a matter of law?
Remoteness of damage
The type of damage must have been foreseeable and can’t be too remote
Established in the wagon mound case
What happens if factual causation is established?
He court will then consider whether the defendant was the legal cause of the claimants harm
What is the but for test?
Used to establish factual causation, but for the defendants act, would the claimant have suffered the harm ? If no, causation is established
What is the eggshell principle?
The wagon mound case states that injury or damage must be reasonably foreseeable, but this does not displace the legal principle that the defendant must take his victim as he finds him. If the victim has a particular weakness (thin skull or weak heart) and suffers a greater injury than a normal person, the defendant will be liable for the full extent of the claimants injuries
Explain the nervous shock principle
The rules for determining duty of care for nervous shock differs for primary and secondary victims. Rescuers are automatically classed as primary victims. PTSD is a recognisable condition
Pure economic loss
Purely financial loss is not usually recoverable. Spartan steel v Martin. (Power cut) Courts consider should the claimant have been insured and whether there are any alternative remedies
What is negligent misstatement?
‘Hedley Byrne v Heller’
What are the 3 defences?
Contributory: partial defence as stated in Law Reform Act (1945)
Consent: full defence ‘smith v baker’ rocks fell on head, although he knew about danger he did not consent to it
Liability: illegality ‘revill v Newbury’ guy shot through door,
And consumer protection act 1987 ‘Boyle v mcdonalds’ spilt coffee, held enough was done to prevent
