1. The Concept of Negligence
-DEFINITION: i)an act or ommission which unreasonably does or may affect the rights of others, or whcih fails to protect ones self from danger (Palsgraf v Long Island Ry Co.)
ii) conduct which falls below a reasonable standard of care as imposed by law (me)
iii) the ommision to do something whcih a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing soemthing whcih a prudent reasonable man would not do (Blyth v. Birmingham Waterworks Alderson J.)
2. The Elements of A Negligence Action
Necessary Elements
a) a duty of care must exist
b) must be a breach of that duty (assed with standard of care)
c) actual damge must have resulted from that breach
d) must be proximate cause and damages must not be too remote
e) must be absence of contrib. neg’ce, voluntary ass’n of risk, or illegality
1. duty of care: must be a duty recignised by law to avoid this duty
does the rel’nship btwn P and D warrent a duty on one to care for beifit of other
distinguish btwn misfeasnce (doing something badly) and nonfeaseance not doing it at all)
2. Standard of care: if behaviour falls below objectively set standard, will likely be neg’t
variety of standards depending on situation
3. Damage:can be as negligent as you want as long as you don’t casue any damage
4. Causation: conduct of D must have casued injury or harm to have befallen the P
but for test
cause in fact
5. Proximate Cause/ Remoteness of Damage: is damage to remote to be a result of D’s conduct?
generally limited to recovery of damages which are forseeable
6. Defences: contributory neg’ce
joint tortfeasors
volenti fit non injuria
ex turpi causa
********MUST ESTABLSH THAT ALL ELEMENTS EXIST BEFORE YOU HAVE A CAUSE OF ACTION********
Catagories of Loss:
a) Special Damages: immediately recognisable and quantifiable at trial
b) General Damages: subject to determination of court
i) cost of future care
ii) loss of earnings (loss of potential earnings)
iii) nonpecuniary damages (loss of amenities of life, pain and suffering, emotional distress, loss of expectaion of life)
Dunsmore v Deshield (1977)- plaintiffs glasses broke whicle playing football and fcae hurt - D had failed to deliver proper lenses -no contrib neg’ce b/c P wouldn’t have played had he not believed the lenses to be shatter proof
casuation- injury caused by wrong lenses since Hardex wouldn’t have broken
injury- manufacturer and distributor liable for damages
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