LAWS 204 - Negligence - Part 1

Front

What are the four criteria that need to be met in order to bring a succesful claim for negligence in court.

Back

1) Wether the defendant owed the plaintiff a duty of care. 2) Wether there was breach by the defendant of their established duty of care. 3) Wether the established breach of a duty of care on the defendant's part, was the factual as well as legal cause of the harm suffered by the plaintiff. 4) That the damages suffered by the plaintiff were reasonably forseable.

Front

What are the two criteria that need to be met in order to establish a duty of care, and what is the authority for this?

Back

In the case of South-Pacific, the court held that in order to establish a duty of care the first consideration of the courts must be to establish whether or not there is adequate proximity between the plaintiff and the defendant, and this goes beyond merely establishing foreseeability. The second consideration is a matter of policy in that, is it fair, just and reasonable for the court to hold that the defendant owed the plaintiff a duty of care.

Front

In which type of case will these criteria to establish a duty of care be applicable? Why/Why not?

Back

These criteria to establish a duty of care will only be applicable in novel situations, in which there is no pre-established duty of care (i.e. the duty of care between employer and employee). If there is such a pre-established duty of care, then statute will deal with the litigation, not case law as discussed here.

Front

In establishing adequete proximity, in third-party/ommisions cases, what is the first thing that the courts must assess? Why?

Back

In the cases of Roll's Royce and Watson, the court held that in establishing adequate proximity in third-party/ omissions cases, the first thing that the courts must assess is the relationship between the plaintiff and the defendant in terms of how close their connection is!

Front

In establishing adequete proximity, in third-party/ommisions cases, what is the second and third thing that the courts must assess? Why?

Back

In the cases of Watson, and Michael the court held that, in establishing adequete proximity, in third-party/ommisions cases, the court must not only determine, the level of control that the defendant had over the situation in terms of preventing harm to the plaintiff, but also, whether the defendant took it upon themselves to be responsible for the safety of the plaintiff!

Front

In establishing adequete proximity/ forseability, in third-party/ommisions cases, what is the first thing that the courts must assess? Why?

Back

In the case of couch, the court held that in establishing adequete forseability, in third-party/ommisions cases, the first thing that the court must assess, is the level of risk that was created, due to the defendant’s negligence/omission. 

Front

Further explain this first element in establishing adequete proximity/forseability using case law.

Back

If the risk created due to the defendants negligence is blatantly forseable/special in the sense that the positive action that the defendant took, forseably created a special risk, then the courts will be much more willing to impose a duty of care on the defendant, to the plaintiff, in a case where the defendant possessed ample power to eradicate or diminish such risk, but failed to reasonably exercise that power. 

Front

What is another thing that the court can decide if the defendant possessed ample power to eradicate or diminish such a risk, but failed to reasonably exercise that power. 

Back

if the defendant has failed to reasonably exercise such power, then the court may hold (if sufficient proximity and control is established) that the defendant owed the plaintiff a duty of care in terms of alerting them to the fact that they have failed to exercise such power. 

Front

In which type of case will the criteria for forseability, not be met?

Back

In a case involving 'freak accidents' the criteria for forseability will not be met.