Please enable JavaScript.
Coggle requires JavaScript to display documents.
Key elements of a negligence tort and tests - Coggle Diagram
Key elements of a negligence tort and tests
All 3 needed
Defendant owes claimant a duty of care
Defendant breached that duty of care
Defendant's breach damaged the claimant
Breach of
owed
duty of care (once established duty is owed)
Has the defendant not taken
reasonable care
ie what would a reasonable person do
Factors in determining this from court
Magnitude of the risk involved in activity defendant undertook
Based on
Likelihood of harm (based on then-available knowledge)
If defendant's act carries very low risk of harm breach may not have occurred
Seriousness of potential harm
(more care required the more serious potential harm is)
Practicability of taking safety precautions to avoid that risk
Eg it is more practicable to put up signs than it is to close the whole factory if there is an oil spill
Also:
social utility
of defendant's action - ie justifiable to take fewer precautions in emergency/rescue situation
Specific groups - reasonable standard of care
Individual characteristics are not taken into account
Children
- what level of care would be expected of reasonable child of that age
Under-skilled defendants'
standard is that of
competent, qualified individual
Based on
task person was carrying out
(eg jr. doctor doing senior doctor's task)
Novice driver, etc
Skilled defendants/professionals
- standard is of whether defendant acted in accordance with
responsible body of professional opinion
Res Ipsa Loquitur
- mere occurrence of some types of accident is sufficient for courts to infer negligence
When res ipsa loquitur applies, it
enables the court to draw an inference to negligence and infer the defendant acted negligently
. In other words, it helps the claimant to prove that the defendant was in breach of duty
Eg man walking down street is struck in head by a wooden barrel of flour that tumbles out of a bakery's second story window
Criminal conviction for negligence can be used as evidence in civil case to show defendant fell below reasonable standard of care
3 conditions must be satisfied for RIL to apply
There must be an absence of any explanation for how the incident occured
The
thing
which
caused the accident must've been under the defendant's control
The accident
would not have happened had proper care been taken
A duty of care is
owed
Case-law established categories
Novel duty requirements
- when court decides if new duty of care is owed
Foreseeability (defendant must reasonably foresee claimant would be damage)
Proximity (not just physical, but when
legal relationship between claimant and defendant is sufficiently close to give rise to a duty of care for the injury that occurs
Imposing a duty must be
fair, just, and reasonable
Duty oughtn't be too wide; else it risks opening floodgates of litigation
Could this duty be enforced?
Omissions to act
don't create a duty of care unless
Defendant has
control
over claimant
Defendant assumes responsibility for claimant's wellbeing - contractual, employment, etc
Individual has duty not to make the situation worse
Defendant's breach
damaged the claimant
Loss
is essential; the defendant
must
have actually been
harmed
3 elements in test
- causation in fact, causation in law
But for
test (causation in fact) But for the claimant's action, would the defendant have suffered harm?
Special cases
Multiple alternative (competing) causes for what caused the one harm
must be proven on balance of probabilities by claimant
Multiple causes
acting together to cause one harm
must only be shown to have made a
material contribution
to the claimant's loss
eg 2 ground beef casseroles were brought to a luncheon by different people, guest ate from both, got seriously ill. Both casseroles contained the bacteria; here, the
material contribution
test applies
The guest can establish causation in fact using the 'material contribution' test because
two causes acted together to cause the harm
. The ‘but for’ test (A) would not work because the guest would have become ill even if one of the volunteers was not negligent. However,
because the guest ate from both harmful dishes, the guest can show that each volunteer’s breach of duty materially contributed to the guest’s harm
Divisible injuries
Damages apportioned between defendants based on share of injury they both caused (eg negligence in loud industrial noise at factory by owner A for 5 years, then same negligence by owner B, eventually leading to industrial deafness
Indivisible injuries
Only
one defendant
need be sued to be made whole and
recover entirely for the injury
(eg claimant is struck by vehicle A, then thrown into path of vehicle B, which also strikes him) - both were in breach of duty of care by driving too fast
However, statute means paying defendant may recover portion from unpaying defendant that is
just and equitable
based on their responsibility for damage
Successive injuries (when claimant suffers a second, separate injury which impacts their first injury)
Defendant B only liable to extent their negligence made claimant's damage
worse than it already was
(and thus may not be liable at all if they scratch a car that already needs to be re-sprayed) after defendant A's action
No new intervening acts
(causation in law)
Even if 'but for' test is satisfied, the consequence must be
reasonably foreseeable
for the defendant to be liable (ie they're not liable if the consequence is not reasonably forseeable)
Claimant themselves can be responsible for intervening act, but
only if they're acting entirely unreasonably
Natural events can break chain of causation
Damage not too remote
(causation in law)
The defendant is
only liable if the damage is a reasonable consequence of the defendant's act based on REASONABLE FORESEEABILITY
- otherwise it is TOO REMOTE
Essentially, was the claimant's damage a
reasonably forseeeable result of defendant's negligence
? If not, then they're not liable
Exceptions where even if too remote defendant is still liable
Egg shell skull rule
Defendant must take victim as they find them
Eg if claimant has pre-existing condition, effects of defendant's negligence may be larger than reasonably foreseeable, but they'd still be liable
Similar in type
Claimant suffers harm that IS
reasonably foreseeable but in a
manner that is not reasonably foreseeable
Eg defendant's employee leaves paraffin lamp with naked flame to protect open manhole cover in street. Defendant would be liable if someone gets burned by it, either in a reasonably foreseeable way or a
a less foreseeable way
, such as a child knocking the lamp into the manhole and exploding, causing severe burns to the child