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