The Tort of Negligence - Physical Damage

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  • Created by: mishyrbc
  • Created on: 06-01-19 14:14
What is Tort?
A wrongful act that causes someone else to suffer loss or harm resulting in legal liability
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What is Negligence?
The failure to live up the the standard of care set by the law which causes someone harm or injury
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Which case established duty of care & what year was it established in?
Donoghue and Stevenson and in 1932
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What is physical damage?
Damage to either a person or property
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What are the 3 elements of Tort of Negligence?
1. Duty of care owed by D 2. Breach of care 3. Breach caused resultant damage
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DUTY OF CARE......
ELEMENT 1
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Who created the general test of negligence?
Lord Atkin created the neighbour test (reasonable forseeability test) - 'reasonable care to avoid acts or omissions'
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Why was the three-stage approach created?
To reduce the number of people suing in negligence - the approach is now much more restricted to stop the floodgates from opening
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Which case established the three-stage approach?
Caparo Industries plc v Dickman (1990)
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What are the 3 stages of the three-stage approach?
1. Was the damage or injury RF 2. Was there proximity between C + D (close relationship = time +space) (Bourhill v young = no proximity) 3. Is it fair, just and reasonable to impose a D of C ( Hill v CC of West Yorkshire police = No duty)
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BREACH OF DUTY.....
ELEMENT 2
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What standard of care is expected in normal circumstances?
The standard of a reasonable man (the objective test - he must do what the RM would or wouldn't do) Nettleship v Weston - d was liable and the standard of care is one of a reasonable driver.
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What standard of care is expected when D has a special skill or knowledge?
D is compared to another professional with that skill (standard of care is higher)
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What standard of care is expected when D is a child?
D is compared to another child of the same age (standard of care is lower)
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Why are the factors in determining reasonable care important?
They are a balancing excersise which help to determine whether the risk of harm to others was justified.
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What is the 1st factor of determining reasonable care?
Probability of damage (the likelihood of damage occurring ) D is not negligent if damage was not foreseeable of his conduct (Bolton v Stone -D was not liable was as the probability was low )
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What is the 2nd factor of determining reasonable care?
Seriousness of potential damage (the more serious the greater the precautions to be taken - especially if person has a disability) Paris v SBC - D was in breach, risk was serious
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What is the 3rd factor of determining reasonable care?
Cost of avoiding/reducing risk (large reduction of risk = small expenditure) Latimer v AEC Ltd - D not in breach, cost of avoiding was practical, D took precaution
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What is the 4th factor of determining reasonable care?
Social benefit of risk - Watt v Hertfordshire CC - no breach, there was a social benefit of the risk as it was an emergency
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What is Res Ipsa Loquitur?
Facts that speak for themselves - in certain cases the claimant can plead this doctrine
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Why is Res Ipsa Loquitur important?
It is effective as it can transfer the burden of proof to D, the courts will presume that D has been negligent unless they can prove otherwise, an iterference of negligence under this doctrine can be rebutted by D if evidence of RC is provided
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which case was the doctrine of Res Ipsa Loquitur as rule for evidence, developed in?
Byrne v Boadle - D was in breach of duty
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RESULTING DAMAGE.....
ELEMENT 3
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What is meant by causation?
A person can only be liable if they caused the damage suffered by the victim
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What is factual causation? (the "but for" test)
The damages /injuries complained must be a direct result of D's act of negligence. The harm should not have occurred 'but for' D,s negligence - Barnett v KHMC - no breach
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What is legal causation? (remoteness of damage)
Damage can be too 'remote' as it is not anticipated - this is referred to as causation, the explanation for this test is that law cannot impose liability on D for everything that follows a wrongful act. Basic test = type of damage must be RF
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What case did the basic test of legal causation create?
The Wagon Mound - D was not liable as type of damage must be RF and fire damage was not RF, it was too 'remote'
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What is another case that is linked to legal causation?
Bradford v Robinson Rentals – employer was liable even tough frost bite is unusual it is still a type of injury
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What is the thin skill principle? (take your victim as you find him unless the initial injury is RF)
Providing C can prove that their injuries were a direct result of D's negligence (factually/legally), D will be entitled to recover damages for the full extent of the injury suffered, even if seriousness of injury was not RF, D cant complain
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Which case illustrates the thin skull principle?
Smith v Leech Brain & co - D was liable, the burn was a foreseeable consequence, the burn of D's negligence resulted in death
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Other cards in this set

Card 2

Front

What is Negligence?

Back

The failure to live up the the standard of care set by the law which causes someone harm or injury

Card 3

Front

Which case established duty of care & what year was it established in?

Back

Preview of the front of card 3

Card 4

Front

What is physical damage?

Back

Preview of the front of card 4

Card 5

Front

What are the 3 elements of Tort of Negligence?

Back

Preview of the front of card 5
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