The cause of action

The forms of damage that are recoverable in negligence are:

1) Personal injury;

2) Physical damage to property;

3) Economic loss consequential on either of the above.

6. What is the duty of care? (Reasonable care should be always be owed to anybody who can be closely effected by your conduct)

As noted above, Lord Atkin's original formulation of neighborhood as the test for duty of care has been subject to a number of refinements .The present test is one of proximity, i.e. there must be a sufficiently proximate (or close) relationship between claimant and defendant so that it is fair, just and reasonable in the circumstances to impose a duty of care on the defendant. For proximity to arise there must be neighborhood (in the sense of foreseeability of harm). However, neighborhood alone does not automatically amount to proximity. The court also considers previous cases by way of analogy and, where appropriate, questions of public policy. Therefore, proximity is a more flexible (and less predictable) notion than that of neighbourhood. There are two particular situations where the courts have imposed additional requirements (over and above mere neighborhood) in order to satisfy the requirement of proximity and, hence, to give rise to a duty of care.

7. At present what are the three interrelated things that must be shown? (Foreseeable dam/, proximity between the claimant and the defendant/ the duty was owed to him, it must be fair, just and reasonable)

The forms of damage that are recoverable in negligence are:

1) personal injury;

2) physical damage to property;

3) economic loss consequential on either of the above.

However, pure economic loss is generally not recoverable. This limitation is not a matter of principle (as pure economic loss is often reasonably foreseeable). Rather, it is a matter of policy to avoid placing the defendant in a position of almost unlimited liability.

The present test is one of proximity, i.e. there must be a sufficiently proximate (or close) relationship between claimant and defendant so that it is fair, just and reasonable in the circumstances to impose a duty of care on the defendant.

8) Give the examples of the cases to prove proximity requirement. (What about cases of nervous shock)

The present test is one of proximity, i.e. there must be a sufficiently proximate (or close) relationship between claimant and defendant so that it is fair, just and reasonable in the circumstances to impose a duty of care on the defendant.

Nervous shock is a precise term meaning a recognized psychiatric illness (e.g. Post-Traumatic Stress Disorder) caused by shock. The law does not recognize claims for ordinary grief or sorrow, no matter how keenly or deeply felt. Therefore, it would seem that a person is owed a duty of care in respect of nervous shock where:

1) The shock is consequent upon physical injury to himself; or

2) The shock is consequent upon a reasonably apprehended fear of physical injury to himself, even though no injury in fact occurs;

3) Personal injury to the claimant (whether physical or psychological) is reasonably foreseeable.

The position is a little more complicated where shock is caused by injury or fear of injury to another person. The House of Lords stated the present position here when considering a series of test cases arising from the Hillsborough Stadium disaster. A person is owed a duty of care in respect of nervous shock where:

1) The shock is consequent upon physical injury to another;

2) The claimant sees or hears (or some equivalent thereof) the accident itself or its immediate aftermath;

3) The claimant (the secondary victim) has a close relationship of love and affection with the injured person (the primary victim) or the claimant is a rescuer;

4) Psychological injury to the claimant (the secondary victim) is reasonably foreseeable; or

5) The shock is consequent upon a reasonably apprehended fear of physical injury to another, even though no injury in fact occurs, and the requirements stated above are met.

9) What is considered fair, just and reasonable in English tort law? (Not liable to a vast number of people, not inhibits the exercise of a public person or a public duty)

Fairness, justice and reasonableness are relevant to all cases of alleged negligence whatever the nature of the harm sustained by the plaintiff. 

The establishment of a duty of care is, like negligence itself, broken up into further elements, a three step test (or insome cases more). "Donoghue v. Stevenson" laid the groundwork for subsequent developments, and from thewords of Lord Atkin's speech, he can be seen to refer to firstly, the concept of reasonable foreseeability of harm;secondly, the claimant and the defendant  being in a relationship of proximity; and thirdly, and more loosely, it being fair, just and reasonable to impose liability on the defendant for his careless action.

And, in order to decide whether it is fair, just and reasonable to impose a duty of care the courts must consider all the circumstances including the position and role of the alleged tortfeasor and any relevant policy considerations

10) What is the standard of care? (E.g/. Conduct of a reasonable man/ accountants and lawyers and standard of care)

In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care.

The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person.

The reasonable man is expected to possess a certain amount of basic knowledge (e.g. that acid burns) and to show a basic or ordinary level of skill. Generally, expert skill or knowledge is not expected unless the defendant has claimed such knowledge or skill. However, this comparison will not help the defendant where it would have been clear to a reasonable man that the accepted practice was itself negligent.

1) Mental or physical incapacity may make it impossible for the defendant to show reasonable care. It would be unjust to hold them negligent in failing to show, the degree of care it is impossible for them to achieve.

2) Young children are not required to show the same degree of care as adults.

3) The elderly are not expected to show the same degree of physical or mental agility or speed of reflex as that of a younger adult.

4) The court may take account of illness on the part of the defendant provided it is both sudden and incapacitating and there has been no forewarning.

11) Who bears the onus of proof in negligent cases generally? (Claimant)

The burden of proving breach lies on the claimant. This is the civil burden of showing that, on the balance of probabilities; the defendant was in breach of duty. However, for a variety of practical reasons, it may be extremely difficult (or even impossible) for the claimant to present definite proof of the defendant's breach. In such circumstances, the claimant may be able to rely on the res ipsa loquitor maxim. This is a rule of evidence that asks the court to accept that "the facts speak for themselves" and infer breach of duty from the general circumstances of the case. For the maxim to apply, two requirements must be met:

1) the accident must be of a type that does not normally occur without someone having been negligent;

2) the circumstances must not merely indicate negligence by someone but negligence on the part of the defendant.

The maxim can only be used to establish breach of duty. It cannot be relied on to establish the required causal link between the defendant's breach and claimant's damage.

12) Give the ex. Of res ipsa loquitur/ (unattended cars run away, cakes – stones)

Привести пример.

13) What types of losses do you know? (economic loss, loss of earnings, medical expenses, personal injury, property damage) + 14) Is purely financial loss recoverable for negligence? (Rarely)

The forms of damage that are recoverable in negligence are:

1) Personal injury;

2) Physical damage to property;

3) Economic loss consequential on either of the above.

However, pure economic loss is generally not recoverable. This limitation is not a matter of principle (as pure economic loss is often reasonably foreseeable). Rather, it is a matter of policy to avoid placing the defendant in a position of almost unlimited liability.

There is one important exception to this general position. Pure economic loss is recoverable where there is a special relationship between claimant and defendant, i.e. where the claimant was relying on the specialist skill and knowledge of the defendant.

15) Nervous shock. Primary victims. Secondary victims.

Nervous shock is a precise term meaning a recognized psychiatric illness (e.g. Post-Traumatic Stress Disorder) caused by shock. The law does not recognize claims for ordinary grief or sorrow, no matter how keenly or deeply felt. As with negligent statements, it is the potential breadth of liability that is the prompt for limitations here. As Lord Wilberforce observed "just because 'shock' in its nature is capable of affecting so wide a range of people there is a very real need for the law to place some limitation on the extent of admissible claims". Therefore, it would seem that a person is owed a duty of care in respect of nervous shock where:

1) The shock is consequent upon physical injury to himself; or

2) The shock is consequent upon a reasonably apprehended fear of physical injury to him, even though no injury in fact occurs

3) Personal injury to the claimant (whether physical or psychological) is reasonably foreseeable

Primary victims The law of negligence relating to nervous shock makes an important distinction between primary and secondary victims. Primary victims are those who have been directly involved in the accident and are at the range of foreseeable injury. There are no policy control mechanisms to limit the number of claimants. The question of foreseeability is the basic one and there is no distinction between physical and psychiatric injury while ruling with claims of nervous shock. Primary victims are those who fear physical injury to themselves, or rescuers of the injured, or those who believe they are about to be, or have been, the involuntary cause to another’s death or injury.

Secondary victims Before there can be liable in the case of secondary victims, there must be a medically recognized psychiatric illness or medical disorder; there is no liability for emotional distress or grief unless this leads to a recognizable medical condition. There have been held to include: depression, personality charge, post-traumatic stress disorder. It was held that there could be no claim for the terror suffered immediately before death for the knowledge that the death was imminent. An abnormally sensitive claimant will be unable to recover unless a person of ‘normal fortitude’ would have suffered There are some other criteria that the claimant will have to satisfy before they can recover for nervous shock in the case of secondary victims.

Proximity in terms of relationship- the claimant must be in a close and loving relationship with the accident victim. Rescuers are the exception to the case.

Proximity in terms of time and space- the claimant must be at the scene of the accident, in the vicinity of the accident or come across the ‘immediate aftermath’ of the accident. The claimant’s injuries must be reasonably foreseeable. There must be a direct perception of the accident by the claimant with his own unaided senses

Rescuers The law does not oblige a person to undertake a rescue unless the parties are in special relationship, but the courts are favorably disposed to someone who does attempt a rescue and is injured in the process. Rescuers may be owed a duty in situations when 1) rescue is foreseeable. and 2) there must be real threat. But rescuer himself can owe a duty to the accident victim when 1) the rescuer is negligent and 2) if he induced the claimant rely on him.

16) Defenses to negligence: contributory negligence defense, volenti поп fit injuria

Five requirements must be met for negligence liability to arise:

1) The damage suffered by the claimant must disclose a cause of action;

2) The defendant must owe the claimant a duty of care;

3) The defendant must have been in breach of that duty;

4) The breach of duty must have been a cause in fact of the claimant's damage;

5) The claimant's damage must have been a reasonably foreseeable consequence of the defendant's breach.

Where the claimant has met these five requirements, the defendant will be liable unless he is able to raise a defence. There are three main possibilities: Contributory negligence, volenti non fit injuria, exclusion of liability.

Contributory negligence This is where the claimant's damage is due, in part, to his own negligence. Under the Law Reform (Contributory Negligence) Act 1945, this is a partial defense, allowing the court to apportion responsibility for the damage between the claimant and defendant and reduce the defendant's liability accordingly. The defendant must show:

1) The claimant failed to exercise reasonable care for his own safety (Davies v. Swan Motor Co (Swansea) Ltd [1949]);

2) This failure made a material contribution to the claimant's damage. In apportioning responsibility, the court considers two factors:

3) The extent to which the actions of the claimant and defendant were a cause of the damage (the causative potency test);

4) The degree to which the claimant and defendant departed from the standards of the reasonable man (the degree of blameworthiness test).

Volenti поп fit injuria Volenti (consent to the risk) is a complete defence to negligence. However, the circumstances in which it may be raised are severely limited and it is of little practical application today. Volenti may be inferred from the claimant's conduct where four requirements are met:

1) The claimant was aware of the defendant's negligent conduct;

2) The claimant was aware of the risk to himself that this created;

3) The claimant continued to participate freely in the activity in the face of this knowledge;

4) The damage suffered was a reasonably foreseeable consequence of the risk consented to.

Exclusion of liability The defendant may seek to rely on ал undertaking by the claimant to accept the risk of negligence in order to exclude or limit his liability. However, as noted above, the extent to which he can do this is limited by the Unfair Contract Terms Act 1977: 1) section 2(1) provides that a person cannot, by reference to any contractual term or non-contractual notice, exclude or restrict business liability for causing death or personal injury through negligence; 2) section 2(2) provides that such liability for other forms of loss or damage can only be excluded or restricted in so far as the term or notice is reasonable; 3) section 2(3) provides that a person's agreement to or awareness of such a term or notice does not, in itself, amount to volenti.

Nevertheless, there may still be certain non-business situations where such undertaking would be effective in excluding or restricting the defendant's liability.