negligence

• Contributory Negligence
• Non Fit Injuria
• Voluntary Assumption of Risk
• Civil law and criminal law have different standards of proof, with the plaintiff in a tort case having to prove their case on a balance of probabilities, while the onus is on the State in a criminal case to prove beyond reasonable doubt.
• Tort Law imposes standards of conduct upon society as a whole, unlike Contract Law where obligations of the parties to the contract arise from agreement between them.
• Negligence is a tort and is the omission to do something which the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or do something which a prudent and reasonable man would not do.
• The elements of negligence in tort law include: the defendant owed the plaintiff a duty of care, the defendant has breached that duty of care, harm suffered by the plaintiff was reasonably foreseeable, and the defendant’s act caused the plaintiff physical/mental harm or economic loss.
• The duty of care in tort law is owed to the plaintiff’s neighbour, as defined by Lord Atkin in Donoghue v Stevenson [1932] HL.
• The neighbour principle in tort law is a test of reasonable foreseeability and proximity.
• The English House of Lords ruled in Donoghue v Stevenson that a person could be liable for negligence even though there was no contract between them.
• The negligence principle established in Donoghue v Stevenson has been extended to include many other things such as road used and employer-employee health & safety in the workplace.
• In Bourhill v Young [1943], a motorcyclist carelessly collided with a car, and the plaintiff, a pregnant lady, was some ten meters away at the time of the accident.
• She suffered nervous shock and miscarriage as a result of hearing the noise of the collision and then seeing the aftermath.
• It was not reasonably foreseeable to the motorcyclist that the plaintiff would be injured as a result of his careless riding.
• The plaintiff was physically outside the area of foreseeable danger and this in itself was sufficient to prevent her from recovering.
• Caparo Industries plc v Dickman is a leading English tort law case on the test for a duty of care.
• The House of Lords, following the Court of Appeal, set out a "three-fold test" for a duty of care to arise in negligence: reasonable foresight, sufficient proximity , and fair just and reasonable to impose a duty.
• The standard of care in negligence is "reasonable care" - objective and a question of fact in each case.
• The "reasonable man test" is used to determine the standard of care.
• Nettleship v Weston is a case where the court considered the question of the standard of care that should be applied to a learner driver, and whether it should be the same as is expected of an experienced driver.
• Factors affecting the standard of care include increased risk, which means more care is needed.
• Causation in negligence is established if it can be shown that "but for" the negligence the injury would not have occurred.
• Barnett v Chelsea & Kensington Hospital Management Committee [1968] is a case where a doctor's refusal to treat a patient who appears before him after swallowing arsenic is not a cause of fact in the patient's subsequent death if it is established that even proper treatment would not have saved him.
• a party can be held liable only for loss that was reasonably foreseeable.
• (Wagon Mound No 1) [1961] is a case where the Privy Council held that a party can be held liable only for loss that was reasonably foreseeable.
• Hedley Byrne is a case where there was a special (proximity) relationship between the parties, with 5 key elements: D possesses a skill or expertise; D voluntarily assumes responsibility for his statements; Known user; Known purpose; Reasonable reliance.
• s12: contributory negligence