TORTS B EXAM NOTES
TORTS B EXAM NOTES 1. Duty 2. Breach
3. Causation 4. Remoteness
5. Defences
6. Damages
THE TORT OF NEGLIGENCE - RF test - Duty situation - Reasonable person - RF test (FR and IR) - Negligence calculus - Factual causation - Scope of liability - Proper categorisation of kind of harm - RF test - Thin skull rule - Contributory negligence - Volenti - Illegality - Volunteers/good Samaritans - Limitations of actions - Contribution and indemnity between tortfeasors - Pecuniary damages - Non-pecuniary damages
HISTORY: Negligence arises where the P sustains damage as a result of the D’s negligent conduct and where the D owed the P a duty of care not to cause that damage. FOUNDATIONS OF THE MODERN TORT OF NEGLIGENCE:
General test for duty- whenever one person is by circumstnaces placed in a position with regard to another that every one of ordinary sense would recognise that if he did not use ordinary care and skill he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such danger (Heaven). Heaven v Pender- Employee painter P sued customer D for faulty scaffolding causing him to fall off and suffer injury when completing painting job; duty made out. - Brett MR’s approach replaced the specific relationship approach. - Took 50 years for the courts to adopt this approach in Donoghue. Neighbourhood principle- one must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour; a neighbour is a person who is so closely and directly affected that reasonable care should be contemplated when directing mind to the acts or omissions in question (Donohue).
Donohue v Stevenson- P suffered gastro and shock upon seeing decomposed snail in a ginger beer purchased by her friend and sued manufacturer in negligence; duty made out. - Confined the general test into a more specific principle. - Underlined that whether or not a duty is owed is a question of fact. - Also underlined that there is no action in negligence if duty can’t be proven.
1. DUTY: The first element of negligence requires the P to prove on a BOP that D owed him/her a duty. Settled law for duty- passes RF > refer to existing precedent. - Doctors in the context of giving medical treatment (Rogers). - Road users and other road users (Chapman). Settled law for no duty- passes RF > fails SF analysis. D’Orta-Ekenaike v VLA- barristers and clients - D sued VLA for acts of lawyer who advised him to enter early guilty plea to rape charge; no duty situation. - Immunity for barristers to clients for work done in court and work done out of court that is so intimately connected with work in court that it can be said to affect the way the case is conducted in court. - Immunity on the basis of (1) Administration of justice. (2) Finality of judicial decision. (3) Avoiding baseless action. (4) Avoiding re-litigation. Robertson v Swincer- parents and children - Driver D who hit child of Ps who ran out onto road when the Ps were saying goodbye to friends sought contribution from the Ps; D had to show that the Ps would have been liable if son sued them; no duty situation. - Immunity for parents to children regarding a failure to take action. - Immunity on the basis of (1) Impracticality of duty which would render 24/7 surveillance. (2) Lack of an objective standard due to parental differences. (3) Unreasonable financial burden on parents. (4) Dissuading caretakers from assuming responsibility. (5) Unreasonable burden on parental judgment. No settled law for duty- passes RF > consider SF analysis.
3. Causation 4. Remoteness
5. Defences
6. Damages
THE TORT OF NEGLIGENCE - RF test - Duty situation - Reasonable person - RF test (FR and IR) - Negligence calculus - Factual causation - Scope of liability - Proper categorisation of kind of harm - RF test - Thin skull rule - Contributory negligence - Volenti - Illegality - Volunteers/good Samaritans - Limitations of actions - Contribution and indemnity between tortfeasors - Pecuniary damages - Non-pecuniary damages
HISTORY: Negligence arises where the P sustains damage as a result of the D’s negligent conduct and where the D owed the P a duty of care not to cause that damage. FOUNDATIONS OF THE MODERN TORT OF NEGLIGENCE:
General test for duty- whenever one person is by circumstnaces placed in a position with regard to another that every one of ordinary sense would recognise that if he did not use ordinary care and skill he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such danger (Heaven). Heaven v Pender- Employee painter P sued customer D for faulty scaffolding causing him to fall off and suffer injury when completing painting job; duty made out. - Brett MR’s approach replaced the specific relationship approach. - Took 50 years for the courts to adopt this approach in Donoghue. Neighbourhood principle- one must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour; a neighbour is a person who is so closely and directly affected that reasonable care should be contemplated when directing mind to the acts or omissions in question (Donohue).
Donohue v Stevenson- P suffered gastro and shock upon seeing decomposed snail in a ginger beer purchased by her friend and sued manufacturer in negligence; duty made out. - Confined the general test into a more specific principle. - Underlined that whether or not a duty is owed is a question of fact. - Also underlined that there is no action in negligence if duty can’t be proven.
1. DUTY: The first element of negligence requires the P to prove on a BOP that D owed him/her a duty. Settled law for duty- passes RF > refer to existing precedent. - Doctors in the context of giving medical treatment (Rogers). - Road users and other road users (Chapman). Settled law for no duty- passes RF > fails SF analysis. D’Orta-Ekenaike v VLA- barristers and clients - D sued VLA for acts of lawyer who advised him to enter early guilty plea to rape charge; no duty situation. - Immunity for barristers to clients for work done in court and work done out of court that is so intimately connected with work in court that it can be said to affect the way the case is conducted in court. - Immunity on the basis of (1) Administration of justice. (2) Finality of judicial decision. (3) Avoiding baseless action. (4) Avoiding re-litigation. Robertson v Swincer- parents and children - Driver D who hit child of Ps who ran out onto road when the Ps were saying goodbye to friends sought contribution from the Ps; D had to show that the Ps would have been liable if son sued them; no duty situation. - Immunity for parents to children regarding a failure to take action. - Immunity on the basis of (1) Impracticality of duty which would render 24/7 surveillance. (2) Lack of an objective standard due to parental differences. (3) Unreasonable financial burden on parents. (4) Dissuading caretakers from assuming responsibility. (5) Unreasonable burden on parental judgment. No settled law for duty- passes RF > consider SF analysis.
