Liability in Negligence.

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DUTY OF CARE:

There is a three part test here.

ELEMENT 1: DAMAGE OR REASONABLE FORESEEABLE HARM.

Must be established that the reasonable person would foresee that someone in the claimant's position might be injured from the defendant's actions.

ELEMENT 2: PROXIMITY OF THE RELATIONSHIP.

There must be a relatively close relationship between the claimant and the defendant.

Decided in terms of actual relationship, or the defendant and claimant being close in terms of time and space.

ELEMENT 3: FAIR, JUST AND REASONABLE.

This requires it to be fair, just and reasonable to impose a duty on the defendant.

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BREACH OF DUTY:

Professionals are judged by the standards of the profession as a whole.

A learner or a trainee is judged against the standard of the reasonable competent person doing the same job as them.

Children and young people are only expected to meet the standards of the reasonable person who is the same age as them at the time of the accident.

The courts have created a set of rules known as risk factors t can higher or lower the standard of care that is owed by the reasonable man.

The special characteristics of the claimant will affect the standard of care owed by the D.

If the D has a disability or illness, or arguably their age that is known to the D, then they are expected to take more care around them because they know this factor.

Therefore, a higher standard of care is owed.

If the risk of injury is large, a higher standard of care is owed.

If the risk of injury is small, a smaller standard of care is owed.

If the D has taken all practical precautions against injury, then a lower standard of care will apply, and they will breach their duty of care.

If the risk of injury is not known at the time of the accident, then the courts have ruled that a lower standard of care is owed and the defendant in these circumstances will not breach their duty of care.

If there is a public benefit of the defendant's actions and their benefit outweighs the risk of injury, then a lower standard of care will be owed as the D is acting in an emergency or for the benefit of the public at large.

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DAMAGE.

The first element to prove is factual causation.

To establish whether the defendant was the factual cause of the loss, the courts will use the 'but for' test.

They will consider but for the defendant's breach of duty, the injury or loss/damage to the claimant would not have occurred.

The second stage of the test that must be established to successfully prove that the defendant's breach of duty caused the loss to the claimant is known as remoteness of damage.

It must be proven that the damage is a foreseeable result of the defendant's breach of duty.

If the damage is too remote, it will be decided that the defendant did not cause the loss, as it was too remote and not foreseeable.

The thin skull rule means that the defendant must take the claimant as they find them.

If the type of injury/damage is reasonably foreseeable, but it is much more serious because the claimant had pre-existing conditions then the defendant is liable for all the subsequent consequences.