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What is the general standard of care?
What is the general standard of care?
The Bolam test is used to determine the standard of care for all professions.
The Bolam test is used to determine the standard of care for all professions.
False
What is the name of the test used to determine if a duty of care is owed?
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?
Which of the following is NOT a factor in determining the standard of breach analysis?
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In the "but for" test, the claimant must prove that without the defendant's negligence, the damage would not have occurred.
In the "but for" test, the claimant must prove that without the defendant's negligence, the damage would not have occurred.
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What is the concept of "thin skull rule" in causation?
What is the concept of "thin skull rule" in causation?
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Which of the following is a valid example of a novus actus interveniens?
Which of the following is a valid example of a novus actus interveniens?
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Contributory negligence is a complete defense, meaning the claimant will receive no compensation if they are found to be partially at fault.
Contributory negligence is a complete defense, meaning the claimant will receive no compensation if they are found to be partially at fault.
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What is the main principle behind the "volenti non fit injuria" defense?
What is the main principle behind the "volenti non fit injuria" defense?
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Which of the following is NOT a requirement for the "volenti non fit injuria" defense?
Which of the following is NOT a requirement for the "volenti non fit injuria" defense?
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The "illegality defense" is always a complete bar to recovery in tort.
The "illegality defense" is always a complete bar to recovery in tort.
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What is the main policy reason behind the "illegality defense"?
What is the main policy reason behind the "illegality defense"?
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The "material contribution to injury" principle applies only when there are multiple possible causes of the claimant's injury.
The "material contribution to injury" principle applies only when there are multiple possible causes of the claimant's injury.
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What is the difference between the "but for" test and the "material increase in risk" analysis?
What is the difference between the "but for" test and the "material increase in risk" analysis?
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Which of the following is a valid example of a novus actus interveniens that may break the chain of causation?
Which of the following is a valid example of a novus actus interveniens that may break the chain of causation?
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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
- Caparo three-stage test:
- 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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