Tort of NEGLIGENCE

Tort of NEGLIGENCE (carelessness)
Must prove 4 elements
1. 1) Defendant owed plaintiff a DUTY OF CARE
  1. "Neighbour principle"
    1. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor
      1. Neighbour: Persons who are so closely and directly affected by my act that I ought reasonably to have them in my consideration
        TO PROVE (must satisfy all 3)
        1) Foreseeability (of harm to the claimant)
        2) Close proximity between the parties that one should consider the other -usually when one's actions directly causes harm to the other
        3) Whether its fair, just and reasonable to impose a duty of care
        PUBLIC POLICY CONSIDERATIONS "The defendants were a non-profit making organisation which carried out classification as a public good. Therefore, it would not be fair, just and reasonable to impose a duty of care on the defendants as it may endanger the existence of such organizations."
        Special relationship There is a duty to act positively if a person has some sort of power or control over the other person. A special relationship can arise in various situations, including: parents and children, employers and employees, schools and children. FACTS: The plaintiff's yacht was damaged by a group of young offenders. The young offenders were working on a restoration project at the harbour. They were supervised during the day by prison officers but they failed to supervise the young offenders at night. The damage occurred when the young offenders went sailing at night and crashed into the plaintiff's yacht. The plaintiff sought damages from the defendant, who employed the prison officers. ISSUE: Could the officers be liable for their omission?
        HELD: The House of Lords decided that the prison officers did owe a duty of care to the plaintiff and the defendant was vicariously liable for the negligence of their employees.A duty for the omission could be imposed because the officers had control over the young offenders and damage to the yacht was reasonably foreseeable.
        There is no general duty to act positively for the benefit of others. However, if a duty is assumed obligations may be imposed. But a duty would arise if you decided to intervene and in so doing made matters worse than they would otherwise have been.
        FACTS: The claimant suffered an asthma attack and a call was made for an ambulance on her behalf. The ambulance failed to arrive within a reasonable time and the claimant suffered a heart attack. The claimant sought damages. ISSUE: Could a duty of care be imposed on the ambulance service? HELD: The court imposed a duty on the ambulance service. It is reasonably foreseeable that a person in the claimant's position (a person waiting for an ambulance) would be further injured if the ambulance failed to arrive promptly. Once a call for help was accepted, the ambulance service assumed responsibility for the patient's care. The reason for the delay was not proved and therefore no policy considerations prevented the duty being imposed.
        Plaintiff has to establish that the defendant owed him a duty of care
  2. Manufactor v Consumer (cannot sue because consumer is a third party under Contract Law)
  3. Is there a duty of care?
    1. TYPE 1 ) Economic loss arising from a NEGLIGENT MISSTATEMENT
      1. 1) Whether it was given over a social occasion or a formal one
        2) Whether it was given gratuitously or for the payment of a fee
        3) Whether it was given by a professional or by a person who held himself as having knowledge or skill or a person who voluntarily assumes responsibility
        4) Whether the person making the statement knew there would be reliance
        5) Whether there was actual reliance
        A SPECIAL RELATIONSHIP/ SUFFICIENT PROXIMITY arises if there is an assumption of responsibility by the defendant (if the defendant knows the claimant is relying on their special skill) and the claimant reasonably relies on the defendant's statement
        A defendant will have assumed a responsibility towards the plaintiff and a special relationship established if the following four stage test is satisfied: 1)* The adviser knew the purpose for which the advice was required (If plaintiff's identity and nature of transaction is known). 2)The adviser knew that the advice would be communicated to the advisee, either specifically or as a member of an ascertainable class. 3) The adviser knew that the advisee was likely to act on the advice without further independent inquiry. 4) The advice was acted on by the advisee to his detriment.
        (YES) FACTS: The plaintiff spent money on extensive refurbishment of their guest house, after being negligently informed by an environmental health officer, employed by the defendant, that the premises would be shut down if the work was not carried out. ISSUE: Was a duty of care owed? HELD: A duty of care was owed. It was reasonable for the plaintiffs to rely on the advice of the environmental health officer, who was in a position of authority.
        (NO) (UNLIMITED LIABILITY (FORESEEABLE BUT NO CLOSE PROXIMITY) FACTS: The plaintiff bought shares in a company, Fidelity, in order to make a successful takeover bid. The plaintiff relied on Fidelity's accounts prepared by the defendant auditors. The accounts showed that Fidelity were making a profit but in fact the company was making a loss. The plaintiff made a loss as they bought the shares for an excessively high price. ISSUE: Was a duty of care owed? HELD: The House of Lords found that the defendants did not owe a duty of care to the plaintiff because the necessary special relationship could not be established.
      2. IS IT A NEGLIGENT MISSTATEMENT?
        1) Prove whether its a negligent misstatement
        EXCEPTION: UNLIMITED LIABILITY: would not be liable even if a negligent statement is made
        FACTS: The plaintiff lost money on his investment after relying on the defendant's carelessly compiled audit reports. ISSUE: Could the pure economic loss be recovered? HELD: The plaintiff could not bring an action because there was no contractual or fiduciary relationship between the parties.
        (NOT IN PUBLIC INTEREST) faced with such potential liabilities, information providers have little choice 1) not provide info at all 2) be prepared to incur large expenses in liabilities
        2) Prove whether there is a duty of care (must satisfy all 3 conditions)
    2. TYPE 2) Pure economic loss arising from a negligent ACT (not accompanied by physical injury,including death, or property damage) (if physical injury/property--> economic loss = there is a duty of care
      1. Even if there is no physical injury or property damage(e.g. just minor defects), IF THERE IS A CLOSE RELATIONSHIP(proximity) BETWEEN THE PARTIES, then there could still be a duty of care owed (in respect of pure economic losses)!!!
        CONTRACT PRESENT: clear proximity present and it is well established that liability for pure economic loss can be claimed
        CONTRACT NOT PRESENT (Pg 308)
      2. * For goods, it is difficult to find a duty of care if the LOSS IS PURELY ECONOMIC e.g. when X buys a product from a retailer and tries to sue the manufacturer for the pure economic loss relating to repairs ( unlikely that court will a close degree of proximity between the parties)
2. 2) Defendant breached that duty of care 3) Defendant's breach caused the plaintiff's loss 4) Loss is not too remote

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Tort of NEGLIGENCE

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	Created by huang.yushu.2011 over 10 years ago