Law requires that those who are deemed to owe others a duty of care (DOC) to act responsibly an take necessary precautions to avoid injury or loss to others.
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What are the 3 elements required to establish a duty of care?
Establish a relationship of proximity between C and D; Reasonable foreseeability of loss; and is it just and reasonable to impose the duty
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What is the definition of a Duty of Care (DOC)?
Duty of care is owed, when due to the carelessness of the D’s actions, the C is injured. Depending upon the relationship between the D and the C will depend on whether the harm carries any legal consequences.
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What is the key case for establishing proximity?
Donoghue v Stevenson
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What were the facts of that case?
Mrs D bought a bottle of ginger beer by friend; After drinking majority dead snail remains were in the bottle; She suffered shock and gastro-enteritis; Brought claim against manufacturer who sealed the bottle
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What was Lord Atkin's principle referred to following this case?
Neighbour principle
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What is proximity?
Proximity is the closeness of relationship between the parties that creates the duty to take care.
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What case relates to this?
Bourhill v Young
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What did the case of Bourhill v Young relate too?
A women who did not witness but heard an accident and saw the aftermath failed in her claim as it was not reasonably foreseeable that she as a road user would be injured due to Mr Y's failure to take care on the road.
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What was the case for establishing if something is just and reasonable?
Caparo Industries Plc v Dickman and others
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What are the two stages for establishing breach of duty?
Application of the reasonable man standard; and exposing the C to unreasonable risk of harm (the principle of risk)
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What is the definition of a Breach of Duty (BOD)?
Breach of duty occurs when the D falls below the standard of care demanded by the law.
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What is the reasonable man standard
“…negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
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What are the three consideration when determining the exposure to risk of harm?
The more likely it would be the D's actions would lead to injury or loss the more likely it would be he had breached his duty to take reasonable care; social utility; cost and practicability of measures to minimise the risk.
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Test for establishing causation
Causation in fact and in law
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What is consequential damage?
C must have suffered loss, which is a type recognised by the law where there is a causal link between the breach and the loss suffered (consequential loss).
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Case that establishes the 'but for test' in causation in fact
Cork v Kirby Maclean
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What is the definition of the but for test?
‘if the damage would not have happened but for a particular fault, then that fault is the cause of the damage – if it would have happened just the same, fault or not fault, the fault is not the cause of the damage’.
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What is causation in law?
D is not liable for every consequence of his wrong. If there is some intervening act that causes the damage to the C then the first D will not be held responsible in negligence. If the damage sustained was too remote, then it would be unreasonable t
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What is the Eggshell Skull Rule
'Take your victim as you find them'
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Where did the definition of Eggsheel skull come from
Smith v Leech Brain & Co
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What are the four defences to negligence?
Illegality; consent (volenti non fit injuria); contributory negligence; and necessity
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What are the two remedies for a successful negligence claim?
Damages and an Injunction
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What is the aim of damages?
To place the injured party, as far as money can, in the position he would have been in before the act was committed.
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Other cards in this set
Card 2
Front
What are the 3 elements required to establish a duty of care?
Back
Establish a relationship of proximity between C and D; Reasonable foreseeability of loss; and is it just and reasonable to impose the duty
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