What is the tort of negligence?
Determines whether the defendant can be held liable for carelessly causing injury to the plaintiff.
What does the tort of negligence require the plaintiff prove about the defendant?
1. Owed a duty of care
2. Breached the standard of care by acting carelessly
3. Caused harm to the plaintiff
What are 3 defences for negligence that a defendant can prove about the plaintiff?
1. Contributory negligence
2. Voluntarily assumed the risk of being injuried
3. Was injured while engaged in some form of illegal behaviour.
What is duty of care?
Exists if the defendant is required to use reasonable care to avoid injuring the plaintiff.
What 3 questions are asked in order to determine duty of care?
1. Was it reasonably foreseeable that the plaintiff could be injured by the defendant's carelessness?
2. Did the parties share a relationship of sufficient proximity?
3. Was there a policy followed?
Is the reasonable foreseeable test dependant upon whether or not the defendant personally knew that the plaintiff might get injured?
No, it is an objective test. Would a reasonable person in the defendant's position realize the possibility?
What deals with the relationship that exists between the parties in relation to negligence?
What is concerned with the effect that a duty of care would have an the legal system and on society in general?
- Examples being:
- 'Openning the floodgates' - very large number of people persuing lawsuits.
- Interference with political decisions
- Hurt a valuable type of relationship - mother does not owe a duty of care to unborn child.
What is the standard of care?
Tell the defendant how they should act.
When is the standard of care breached?
When the defendant acts carelessly.
What is the reasonable person test?
Requires the defendant to act in the same way that a reasonable person would act in similar circumstances.
Do judges lower the standard of care for childern defendants?
Yeah, they do not have the same amount of knowledge, intellence or experince.
What is the but-for-test?
Requires the plaintiff to prove that it would not have suffered a loss but for the defendant's carelessness.
- If yes, defendant not liable.
- If no, defendant might held liable.
What is a balance of probabilities?
At least 51 percent liklihood.
What is an all-or-nothing approach?
If it is over 51% likely that it is the defendants fault, then the plaintiff will be awarded damages for all of that loss.
Does the plaintiff have to prove that the defendant's carelessness was the only cause of a loss?
No, just that is was a cause.
What happens when different defendants cause the plaintiff to suffer different injuries?
Then each one is responsible accordingly.
Is the situation more complicated if different defendants create a single injury?
For sure, fool.You can charge the full amount to one person or split it between the two.
Can a court reject the but-for-test?
Yeah, if it would lead to an unfair result.
What is a thin skull?
If the plaintiff was unusually vulerable to injury.
You would not be responsible if a normal person wouldn't suffer any harm. But you are fully responsible if a normal person would suffer harm.
What is an intervening act?
An event that occurs after the defendant's carelessness and that causes the plaintiff to suffer an additional injury.
What are the 3 most important defences for negligence?
Voluntary assumption of risk
What is contributory negligence?
When a loss is caused partly by the defendant's carelessness and partly by the plaintiff's own carelessness.
What is voluntary assumption of risk?
If the plaintiff freely agreed to accept a risk of injury.
What is illegality?
Plaintiff suffered a loss while participating in an illegal act.