NEGLIGENCE MAP Remember to always use authorities to support principles (cases or legislation) and apply these to the facts. Note when the CLA applies - see s 4 and when it does not, s 5. The CLA does not codify the common law. In some sections it restates it, some sections replace the common law, and some sections supplement the common law. In some areas the common law remains undisturbed by the CLA (eg psychological loss). 1. DUTY OF CARE (Is there a duty owed to the person who has been injured?). Remember that in cases of direct physical injury (for example car accidents, and cases of pre-existing relationships such as doctor and patient, employer/employee) a relevant precedent for duty of care usually exists. The issue of whether a duty of care exists usually arises in novel and difficult cases. Although there is still some uncertainty in the High Court in relation to the test for duty of care the following two issues appear relevant. A. Reasonable Foreseeability (Would the reasonable person in the Defendant's position have foreseen that there was a real risk that carelessness on his/her part could cause loss/harm to PEOPLE in the plaintiff's position?) B. Salient Features Identify relevant salient features (including policy factors) for the relevant Category of case. Categories studied include: · Sports Liability . Public Authority Liability . Liability for defective structures · Psychological loss 2. BREACH OF DUTY A. Standard of Care (What standard of care is required of the defendant?) · CLA s 9(1)(c) - a reasonable person in the position of the person . CLA s 21 Proactive and reactive duties of doctors to warn of risk. . CLA s 22 Standard of Care for Professionals. B. Was that Standard Breached: Risk v Response (Did the defendant's actions or omissions breach that standard?) 1
. Plaintiff must prove this on the balance of probabilities - CLA s 12. · CLA s 9(1) that a person is not in breach of their duty of care unless (a) Risk foreseeable; and (b) Risk not insignificant; and (c) Reasonable person would have taken the precautions. · CLA s 9(2) sets out the relevant considerations (but not comprehensive). (a) probability; (b) likely seriousness of the harm; (c) burden of taking precautions to avoid the risk of harm; (d) social utility of the activity that creates the risk of harm. · CLA s 13 - obvious risks · CLA s 15 - no proactive duty to warn of obvious risks. · CLA s 16- no liability for inherent risk . CLA Part I, Div 4 - Are there dangerous recreational activities involved? 3. CAUSATION Must be causation of actual damage. Recognisable categories · Physical · Economic · Psychological (recognised psychiatric injury) A. Factual Causation (If the defendant had acted carefully, would the plaintiff have suffered this particular loss - has the defendant caused the harm?) · CLA s 11 (1)(a) - has the breach caused or been responsible for the harm? · CLA s11(2) -