LAW101B Negligence (general + latin terms)

What is tort law?

A civil wrong, act, or omission independent of contract.

What is negligence?

“…the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances.”

What are the important details of Donoghue v Stevenson?

• Opaque ginger beer bottle with snail inside

• No contract between plaintiff and defence

• Involved a manufacturer

What is the neighbour principle?

Love thy neighour becomes you must not injure your neighour in law. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Who are your neighours?

Your neighbours are people that are closely affected by your actions and you ought to have them in contemplation.

What is the burden of proof?

The plaintiff needing to prove their case against the defendants who have the benefit of doubt.

What is the eggshell skull rule?

A common law doctrine in negligence stating that the defendant is liale for any unforeseeable or uncommon reactions to the action. You take the victim as you find them

What is reasoning by analogy?

Judges deciding how similar/different facts are in a present case to an older case. If they are sufficiently similar the judgement should be followed.

What is the unforeseeable plaintiff?

A person outside the scope of duty because their injuries could not have been foreseen by the perpetrator, therefore no negligence is owed.

What is vicarious liability?

The entity was negligent in controlling the employee’s actions, (provided that they were acting within their employment at the time) therefore the employers will be held accountable rather than the employee

What is volenti non fit injuria?

"No harm is done to one who consents." Essentially if the plaintiff entered a situation knowing the risks that the action entailed, the defendants have no duty of care

What is novus actus intervenians?

An introduction of a new act or omission that occurs after negligence is done that breaks the chain of causation.

What are the elements for negligence?

• Duty was owed

• There was a breach of that duty

• There was injury/loss to the plaintiff

• There was a reasonably proximate connection between the defendants conduct and the injury (remoteness of damage or proximate cause)

Summarise Donoghue v Stevenson

• Plaintiff’s friend brought plaintiff ginger beer

• Plaintiff found a dead snail in the bottle

• Plaintiff suffered gastro and shock

• Question of if negligence should be a tort and apply

• Also a question of inspectability

• No opportunity to inspect

• Court said yes and established negligence as a tort

• Court established the neighbour principle

• Plaintiff won

Summarise Grant v AKM

• Plaintiff brought undies from defendant

• Plaintiff suffered dermatitis from sulphites

• Plaintiff could have inspected the undies

• Court decided that like DvS the defect could not be identified.

• Introduced eggshell skull rule

• Introduced contributory negligence

• Plaintiff won

Summarise Herschtal v Stewart & Ardern Ltd

• Plaintiff rented car from respondent

• The rear wheel of the car fell off while driving due to lose nuts

• Plaintiff suffered from emotional shock with medical expenses

• Plaintiff could have checked the wheel nuts

• Question of is the test for liability reasonable possibility or reasonable anticipation of inspection.

• Court decided it was not reasonable to expect plaintiff to inspect

• Plaintiff wins

Summarise Bolton v Stone

• Court of appeal

• Respondent got hit by a cricket ball whilst standing outside her house

• Question of it is enough that an injury might possibly occur or must there be some greater probability

• Court decided that there was duty but it was not breached as it was unlikely

• Not negligence

• Appellants won

Summarise Miller v Jackson

• Court of appeal

• Respondent lives next to cricket grounds

• Balls keep landing in respondent’s house damaging windows and tiles

• Balls were frequent

• There were enough balls going over to push possibility to highly probable

• Therefore negligent

• Respondent won

Summarise Russell v McCabe

• Court of Appeal

• Appellant lit fire on farm and the fire spread

• Respondent was a volunteer firefighter and helped put it out

• Respondent got badly burned

• Question of reasonable intervention and foreseeable intervention

• Introduction of a third party

• Introduction of Volenti non fit injuria

• Court decided that respondent acted reasonably and their intervention was foreseeable

• Therefore chain of causation was maintained

• Respondent wins

Summarise Dorset Yacht v Home Office

• Court of Appeal

• Appeallants let youth detention boys loose and they damaged the respondents yacht as a result

• Question of did the appellants owe a duty of care to private people in regards to the boys

• Question of public policy allowing immunity from action and liability

• Introduction of novus actus interveniens

• Their actions were foreseeable so no novus

• Chain of causation maintained

• Fear of being sued would not affect policy

• Respondent wins

What is contributory negligence?

If the injured party themselves did something that contributed to the harm or loss then the compensation can be reduced accordingly: The plaintiff can still win