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Questions and Answers

What is the general standard of care?

  • A reasonable man (correct)
  • A person with the same skill
  • An average person
  • A professional

The Bolam test is used to determine the standard of care for all professions.

False (B)

What is the name of the test used to determine if a duty of care is owed?

The Caparo three-stage test

Which of the following is NOT a factor in determining the standard of breach analysis?

<p>Professional experience (B)</p> Signup and view all the answers

In the "but for" test, the claimant must prove that without the defendant's negligence, the damage would not have occurred.

<p>True (A)</p> Signup and view all the answers

What is the concept of "thin skull rule" in causation?

<p>The thin skull rule states that the defendant is liable for the full extent of the claimant's injuries, even if the claimant was more vulnerable to injury than an average person due to a pre-existing condition.</p> Signup and view all the answers

Which of the following is a valid example of a novus actus interveniens?

<p>All of the above (D)</p> Signup and view all the answers

Contributory negligence is a complete defense, meaning the claimant will receive no compensation if they are found to be partially at fault.

<p>False (B)</p> Signup and view all the answers

What is the main principle behind the "volenti non fit injuria" defense?

<p>The claimant voluntarily assumed the risk of harm, knowing the potential consequences.</p> Signup and view all the answers

Which of the following is NOT a requirement for the "volenti non fit injuria" defense?

<p>Compulsion to take the risk (C)</p> Signup and view all the answers

The "illegality defense" is always a complete bar to recovery in tort.

<p>False (B)</p> Signup and view all the answers

What is the main policy reason behind the "illegality defense"?

<p>To maintain consistency between criminal and civil law, preventing claimants from benefiting from their own illegal acts.</p> Signup and view all the answers

The "material contribution to injury" principle applies only when there are multiple possible causes of the claimant's injury.

<p>True (A)</p> Signup and view all the answers

What is the difference between the "but for" test and the "material increase in risk" analysis?

<p>The &quot;but for&quot; test establishes factual causation by asking if the damage would've occurred without the defendant's negligence. The &quot;material increase in risk&quot; analysis applies when there is a &quot;rock of uncertainty&quot; and focuses on whether the defendant's breach increased the risk of the claimant's injury, even if it can't be proven to be the sole cause.</p> Signup and view all the answers

Which of the following is a valid example of a novus actus interveniens that may break the chain of causation?

<p>All of the above (D)</p> Signup and view all the answers

Flashcards

Duty of Care

An obligation to take reasonable care to avoid causing harm to others.

Reasonable Foresight

A requirement for a duty of care; the defendant must foresee that their actions could harm the claimant.

Proximity

A close connection or relationship between the defendant and claimant, increasing the likelihood of a duty of care.

Fair, Just, and Reasonable

A consideration whether it is appropriate to impose a duty of care in the specific circumstances.

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Caparo Test

A three-stage test for establishing a duty of care: reasonable foresight, proximity, and fairness.

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Primary Victim

A person directly involved in an accident, often having a higher likelihood of a duty of care.

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Omissions

Failing to act or take appropriate steps; sometimes leading to the imposition of a duty of care in specific cases.

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Special Duty Cases

Modifications of the Caparo test for specific situations where a duty is potentially present, for example in relationships or established responsibilities

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Mental Injuries

Recognizing and validating mental health conditions resulting from incidents

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Relationship of Proximity (Example)

A close connection or link between the parties, potentially generating a duty of care. Example: Employer-employee.

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Reasonable Foresight (Example)

Could the defendant reasonably foresee their actions causing harm to the claimant? Example: A negligent driver causing harm to others.

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Study Notes

Duty of Care

  • Duty of care is the obligation owed by one party (defendant) to another (claimant) to take care to avoid causing injury or loss.
  • Reasonable foresight: The defendant's failure to take care could cause damage to the claimant.
  • Relationship of proximity: A connection between the claimant and the defendant.
  • Fair, just, and reasonable: Recognition of the defendant's duty to prevent harm.
  • When a duty of care is owed? (incremental/analogous)
    • Road users,
    • Employer-employee,
    • Doctor-patient,
    • Manufacturer-consumer,
    • Occupier-visitor,
    • Lecturer-student,
    • Dentist-patient
  • How courts decide when a duty of care exists?
    • Caparo three-stage test:
      • Reasonable Foresight
      • Relationship of Proximity
      • Fair, just, reasonable
  • Existing precedent?
    • If yes, follow the precedent.
    • If no, move to the next step
  • Analogous precedent?
    • If yes, precedent can be extended to establish/deny duty of care.
    • If no, move to the next step
  • Reasonable foreseeability of harm?
    • If no, no duty of care is owed.
    • If yes, proceed to the next step
  • Relationship of Proximity?
    • If no, no duty of care is owed.
    • If yes, proceed to the next step
  • Fair, just, and reasonable to impose a duty of care?
    • If yes, duty of care is owed.
    • If no, no duty of care is owed.

Special Duty of Care

  • Primary victims: People injured in the accident (more privileged).
  • Secondary victims: Witnesses to the accident.
  • Omissions: Obligations for omissions where a clear relationship exists.
  • Control: Having control over the situation. (e.g., council permitting a hazardous situation).
  • Assumptions of responsibility: A duty for the safety/wellbeing of another. (e.g. person asleep and creates risk of harm).
  • Creating/adopting risks: A duty to address dangerous situations created. (e.g., a landowner failing to prevent a fire from spreading which they knew was possible).
  • Contract duties: Specific agreements determine expectations and duties of care.
  • Specific relationships: Unique situations like parent-child, where a higher duty of care might exist.
  • Mental injury: Requirements for a recognized psychiatric condition (depression, PTSD) . General anxiety or stress isn't enough.
  • Proximity relationship: Relationships (e.g. parents and children)
  • Foreseeability, duty and remoteness of damage: The harm must have been foreseeable, and time and space involved (McLoughlin v O'Brian - direct aftermath).

Breach of Duty

  • Reasonable person test: A theoretical benchmark for expected behaviour, neither too cautious nor reckless.
  • Bolam test: (for doctors) How other doctors would act in similar situations.
  • Standard of care: The level of care expected from another party.
  • Breach of standard: Actions that fall below the anticipated standard.
  • Factors influencing Breach Analysis:
    • Cost of required care
    • Social utility of the defendant's actions
    • Foreseeable likelihood and magnitude of harm

Causation

  • But-for test: The damage would not have occurred "but for" the defendant's negligence.
  • Material contribution to Injury: Liability when the defendant is a partial cause (Bonnington)
  • Material increase in risk: Liability even when causation is theoretically impossible to prove.
  • Novus actus interveniens: Intervening events that break the chain of causation (e.g., claimant's own actions, natural events, third parties). This discharges the defendant from liability.
  • Remoteness of damage: The injury must be reasonably foreseeable for liability.

Partial Defenses

  • Contributory negligence: Claimant's own negligence in contributing to the injury, the reduction in damages is proportionally relative to their role and fault (Law Reform Contributory Negligence) Act 1945).
  • Volenti non fit injuria: (voluntary assumption of risk) Claimant knowingly and willingly accepted the risk
  • Illegality: Past illegal conduct may bar a claim, but the link to the accident must be significant.

Key Case Law Examples

  • (Many cases) used throughout the notes and are good summaries. (e.g. Donoghue v Stevenson, Barnett v Kensington)

Additional Notes

  • Different standards may apply in different contexts (e.g., professional, children, emergency).
  • Notes on specific aspects like the "thin skull rule" (a pre-existing vulnerability of the claimant does not absolve the defendant) are not provided here but should be looked for in other sources.

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