EXAM NOTES: General Negligence elements

Question 1

What are the elements of a general negligence claim?

Answer 1

1) damage
2) duty of care
3) breach
4) causation - legal and factual
5) remoteness
6) defences

Question 2

What shows a duty of care is owed while driving?

Answer 2

• to passengers: Nettleship v Weston

- to pedestrians/third parties: Fitzgerald v Lane and Patel

Question 3

What governs duty of care generally?

Answer 3

• Caparo v Dickman
  1. Was the damage reasonably foreseeable?
  2. Relationship of sufficient proximity between the claimant and the
  defendant?
  3. Is it ‘fair, just and reasonable’ to impose a duty of care in the situation?

Question 4

what is the test for factual causation?

Answer 4

• Cork v Kirby ‘but for’ test

Question 5

What covers whether the claimant is a NAI?

Answer 5

has the claimant acted unreasonably/unforeseeably?

- McKew v Holland (unreasonable behaviour constituted a NAI)

Question 6

What is the overall controlling factor on NAIs?

Answer 6

• the NAI must be unforeseeable Robinson v Post Office (cutting himself on the stepladder then suffering harm in hospital - not unforeseeable)

Question 7

can volenti be used in traffic accidents by a driver to passengers?

Answer 7

s149 RTA 1988

- no volenti by driver to defend against passengers

Question 8

What governs apportionment?

Answer 8

• Fitzgerald v Lane and Patel

Question 9

What governs contributory negligence?

Answer 9

• (1) Law Reform (contributory negligence) Act 1945 - learn and apply it!
• damages will be reduced according to what is “just and equitable”

Question 10

Give a case where the act of a third party broke the chain of causation

Answer 10

• Knightley v Johns - police inspector’s negligent handling of traffic after an accident caused a death (sent a policeman down a tunnel into oncoming traffic)

Question 11

Why is volenti so hard to get?

Answer 11

• complete defence so courts unwilling to allow it if the employer deserves some liability. Contributory negligence is preferred.

Question 12

What is the test for remoteness?

Answer 12

• Wagon Mound (No 1) is the damage suffered reasonably foreseeable?
• Mughal v Reuters is it of a recognised kind (here, RSI)
• Bradford v Robinson Rentals - PI cases generally interpreted widely/non-restrictively

Question 13

What case says that the application of force in battery to the person must be intentional?

Answer 13

Letang v Cooper

Question 14

what is the general test for a duty of care?

Answer 14

Caparo v Dickman

1) is the loss reasonably foreseeable?
2) is there a relationship of sufficient proximity between D and C?
3) is it fair, just and reasonable for the law to impose a duty in this situation?

Question 15

how can you tell if contributory negligence applies?

Answer 15

Froom v Butcher (seatbelt) - was the negligent act reasonable?

Jones v Livox Quarries (hitching a lift) - has C acted against orders? has he exposed himself to danger?

Question 16

How is contrib neg worked out for children

Answer 16

with reference to the reasonable child of the same age Yachuk v Oliver Blais

Question 17

What constitutes battery?

Answer 17

direct
intentional
application of force
by D to C
without justification
(possibly) with malice

Question 18

What says battery has to be direct

Answer 18

• Reynolds v Clarke (throwing a log)

- but DPP v Kay taken very widely

Question 19

Take victim as you find him

Answer 19

Smith v Leech Brain

Question 20

Discuss malice for battery

Answer 20

Wilson v Pringle suggests need for hostility unless the touching has been expressly/impliedly consented to