Torts Notes
Torts Notes – Negligence
Contents
1 Preamble 2
1.1 Concurrent Wrongdoers 2
1.2 Death 2
1.3 Apologists 2
1.4 Vicarious liability/non-delegable duties 3
2 Duty of care 5
2.1 Immunities 5
2.2 Omissions/failure to control third party 6
2.3 Atypical Plaintiffs 6
2.4 Unborn Child 6
2.5 Mental Harm/Nervous Shock 7
2.6 Statutory Authorities 8
2.7 Pure Economic Loss/Negligent Misstatement 11
3 Breach of Duty 12
3.1 Section 5C 12
3.2 Obvious risks 12
4 Causation 13
4.1 Res ipsa loquitur 13
4.2 Novus actus interveniens 13
4.3 Causation in medical “failure to warn” cases 14
4.4 Multiple causes of injury/death 14
5 Remoteness 15
5.1 Eggshell skull rule 15
6 Defences 16
6.1 Professional working within professional standards 16
6.2 Contributory negligence 16
6.3 Intoxication 17
6.4 Volenti non fit injuria (common law defence of assumption of risk) 17
6.5 Obvious risk 17
6.6 Inherent risk 18
6.7 Recreational activity 18
6.8 Risk warning 19
6.9 Risk waiver/exclusion clauses 19
6.10 Illegality 19
7 Worker’s Compensation 20
8 Motor Accidents 21
Preamble • Bring action within the CLA: S3B CLA
Concurrent Wrongdoers • All defendants may be served: Law Reform Miscellaneous Provisions Act 1944 (LRMPA) s2A(1)a) • Defendants may be tried together: LRMPA s2A(1)e) • Plaintiff must serve all potential concurrent wrongdoers: CLA s35A • Defendants pay proportion of damages as proportionate to how their negligence caused damage: CLA s35(1)a) • Concurrent tortfeasors are jointly liable except in cases of personal injury: CLA s34(1)a)
Death
Cause of action survives and may be brought by the deceased’s estate (Law Reform (Miscellaneous Provisions) Act ‘44 s2).
Relatives may claim (spouse, parents, children, step people, half people) (Compensation of Relatives Act 1897 s4).
Apologists
An apology does not constitute an admission of fault or liability (ss69(1)a)
Vicarious liability/non-delegable duties
A company may be vicariously liable if
Contents
1 Preamble 2
1.1 Concurrent Wrongdoers 2
1.2 Death 2
1.3 Apologists 2
1.4 Vicarious liability/non-delegable duties 3
2 Duty of care 5
2.1 Immunities 5
2.2 Omissions/failure to control third party 6
2.3 Atypical Plaintiffs 6
2.4 Unborn Child 6
2.5 Mental Harm/Nervous Shock 7
2.6 Statutory Authorities 8
2.7 Pure Economic Loss/Negligent Misstatement 11
3 Breach of Duty 12
3.1 Section 5C 12
3.2 Obvious risks 12
4 Causation 13
4.1 Res ipsa loquitur 13
4.2 Novus actus interveniens 13
4.3 Causation in medical “failure to warn” cases 14
4.4 Multiple causes of injury/death 14
5 Remoteness 15
5.1 Eggshell skull rule 15
6 Defences 16
6.1 Professional working within professional standards 16
6.2 Contributory negligence 16
6.3 Intoxication 17
6.4 Volenti non fit injuria (common law defence of assumption of risk) 17
6.5 Obvious risk 17
6.6 Inherent risk 18
6.7 Recreational activity 18
6.8 Risk warning 19
6.9 Risk waiver/exclusion clauses 19
6.10 Illegality 19
7 Worker’s Compensation 20
8 Motor Accidents 21
Preamble • Bring action within the CLA: S3B CLA
Concurrent Wrongdoers • All defendants may be served: Law Reform Miscellaneous Provisions Act 1944 (LRMPA) s2A(1)a) • Defendants may be tried together: LRMPA s2A(1)e) • Plaintiff must serve all potential concurrent wrongdoers: CLA s35A • Defendants pay proportion of damages as proportionate to how their negligence caused damage: CLA s35(1)a) • Concurrent tortfeasors are jointly liable except in cases of personal injury: CLA s34(1)a)
Death
Cause of action survives and may be brought by the deceased’s estate (Law Reform (Miscellaneous Provisions) Act ‘44 s2).
Relatives may claim (spouse, parents, children, step people, half people) (Compensation of Relatives Act 1897 s4).
Apologists
An apology does not constitute an admission of fault or liability (ss69(1)a)
Vicarious liability/non-delegable duties
A company may be vicariously liable if