Tort - Topic 2 - Negligence (Duty and Breach) Flashcards Preview

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Flashcards in Tort - Topic 2 - Negligence (Duty and Breach) Deck (7)
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1

Define Negligence

A breach by the Defendant of a legal duty of care owed to the Claimant that results in actionable damage to the Claimant unintended by the Defendant.

2

Steps of establishing duty of care...

1) Consider established duty (or no duty) situations i.e. case law

2) If not covered by case law (i.e. novel situation), apply Caparo test
(Caparo Industries v Dickman):

i) Is it REASONABLY FORESEEABLE that D's actions will affect this particular C?
ii) Is there sufficient PROXIMITY OF RELATIONSHIP between C and D?
iii) Is it FAIR, JUST AND REASONABLE to impose a duty?
e.g. it may not be fair if D is a non-profit org. / acting in a quasi-public capacity (Marc Rich v Bishop Rock Marine)

3

Required steps of proving negligence...

1. Loss or damage of a recognised kind sustained by the Claimant
2. Existence of a duty of care owed by D to C and...
3. ...a breach of that duty by the defendant
4. Proof that the breach caused the damage
5. Proof that the damage suffered was reasonably foreseeable
6. Defences?

4

Nervous shock - define damage

Must be a medically recognised form of psychiatric illness. Liability will not arise for normal human emotions e.g. fear, distress (Riley v Merseyside HA)

5

Nervous shock - Distinguish between primary and secondary victims

Primary victim suffers nervous shock as a result of reasonable fear for their OWN safety (n.b. doesn't have to actually suffer physical harm)

Secondary victim suffers shock due to fear for another's safety

6

Nervous shock - duty of care to primary victims

Apply Caparo test:

1. Foreseeable (Physical harm rather than psychiatric)
2. Proximity of C to D
3. Fair, Just and reasonable to apply duty

7

Nervous shock - duty of care for secondary victims

Apply Alcock Criteria (Alcock v Chief Constable of South Yorkshire):

1. whether C suffered psychiatric illness
2. foreseeability of PSYCHIATRIC damage
3. relationship between C and the 'victim'
4. proximity in time and space and...
5. ... manner of perception

n.b. also consider fair, just and reasonable