Mapa mental
Negligence
Contenido del mapa
Negligence
Loss
- Physical
- Economic
Elements
- Harm not remote
- Beware of opening floodgates
- Duty of care
- Relationship (degree of proximity)
- Temporal (time) factor
- Meah v McCreamer
- Person got injured in car accident, changed his personality, he became a sex offender
- Cannot be compensated for his crimes against women, nor can the women sue the person who caused the accident
- Person got injured in car accident, changed his personality, he became a sex offender
- Meah v McCreamer
- Physical (place) / personal connection factor
- Dorset Yacht v Home Office
- Temporal (time) factor
- Factors affecting judicial imposition of DOC
- Foreseeability
- No presumptions exist for/against
- Judicial reasoning, law of precedent
- Economic loss may make court less willing to impose DOC (wider scope)
- Special relationship = more inclined to impose DOC (essential in negligent misstatement)
- Legislative background that en/discourages imposition of DOC?
- Contractual background
- Relationship (degree of proximity)
- Breach of duty
- Standard of care (SOC)
- Reasonable person
- Skill and expertise
- Greater standard of care required if def. hold out to be experts
- Professionals and trades people
- Risk allocation
- Probability of harm
- Preventative measures may be unnecessary to avoid rare/ improbable risks
- Bolton v Stone
- Pl. hit by cricket ball over fence
- No negligence since risk of injury to anyone in such a place was so remote that a reasonable person would not have anticipated it
- Bolton v Stone
- Preventative measures may be unnecessary to avoid rare/ improbable risks
- Circumstances, e.g. vulnerability
- If def. knows the pl. is particularly vulnerable then the SOC will be higher
- Social value of the activity
- even if DOC is found, if def. activity is of high social benefit, SOC may be held to be lower
- Gravity of risk (more danger = more care required)
- How practical/expensive is it to take precautions?
- Cheaper = more likely to be required, expense may be justified if activity is so dangerous
- Probability of harm
- Standard of care (SOC)
- Duty caused harm
- But/for test
- Harm not remote
Negligent misstatement
- Pure economic
- Reliance
- pl. must have relied on the statement
- Boyd Knight v Purdue
- Auditor's report in company prospectus. (Unlike Caparo) court said a relationship existed between auditor as professional advisor and potential investors
- Boyd Knight v Purdue
- pl. must have relied on the statement
- Duty of care
- Special Relationship
- Plaintiff in contract with def.
- Liability in contract and negligent misstatement
- Pl. and def. have communicated directly or indirectly
- Liability likely
- Dimond Manufacturing v Hamilton
- No direct contact but def. knows pl. will rely and act on his/her advice for an immediate purpose
- Liability likely
- Smith v Eric S Bush Ltd
- Valuation for mortgage said no repairs necessary, but bought house and chimney collapsed. Court said valuer was liable
- Def. has special knowledge and may reasonably pl. will use the statement
- liability possible but unlikely
- Caparo v Dickman
- Auditor owes DOC to company being audited, not to individual shareholders
- Def. knows statements likely to be relied on but knows nothing about pl.
- liability unlikely
- Plaintiff in contract with def.
- Proximity and assumed responsibility
- Hedley Byrne v Heller
- Special Relationship
- Breach
- Remoteness
- Disclaimers (to avoid liability)
- Must be communicated to the client, well written, easy to find, concise
Defences
- Contributory negligence
- Voluntary assumption of risk
- Def must prove (1) Pl knew of the risk (2) freely decided to assume responsibility in event of harm
Cases
- Donoghue v Stevenson
- Gastro-enteritis after drinking ginger beer with snail
- Held: reasonably foreseeable that ultimate consumer could be affected by lack of "quality control". Thus there is a DOC to ultimate consumers
- Established 'neighbour test'
- Neighbour = someone so closely and directly affected by your actions that you should think about the affect your actions/omissions have on them
- Hedley Byrne v Heller
- Bankers gave info about creditworthiness of a customer to a third party (the plaintiffs)
- Held: def. weren't liable because they had issued a disclaimer of responsibility
- (negligent misstatement)
- Donoghue v Stevenson
10 key points
- Common law
- Obligations
- Neighbour
- Donoghue v Stevenson
- Elements to succeed
- Duty of care
- Breach
- Harm/damage
- Defences
Negligence
- Duty of care = foreseeability & proximity
- Breach of standard of care
- Factual causation
- Remoteness of harm
- physical/economic loss
- Remoteness of harm
- Factual causation
- Breach of standard of care
- Duty of care = foreseeability & proximity
Negligent misstatement
- Duty of care = proximity and assumed responsibility ("special relationship")
- Breach of standard of care
- Factual causation = actual reliance
- remoteness of harm
- pure economic loss
- remoteness of harm
- Factual causation = actual reliance
- Breach of standard of care
- Duty of care = proximity and assumed responsibility ("special relationship")
Información
- Descripción
- comlaw
- Creado por
- Meredith Jeory · oct 2014
- Actualizado
- 9 may 2018
- Visitas
- 145
- Etiquetas
- Valoración