2. Negligence

Question 1

What are the three elements of negligence which must be proved?

Answer 1

1. Defendant owes claimant duty of care
2. Defendant breached that duty
3. Defendant’s breach caused damage to the claimant

Question 2

What are seven examples of an established duty situation, in which the first element is assumed and does not need to be proven?

Answer 2

1. Driver to other road users
2. Doctor to patients
3. Teacher to pupils
4. Parent to child
5. Solicitor to client
6. Employer to employee
7. Manufacturer to consumers

Question 3

What is a novel duty situation?

Answer 3

Where there is no established duty, and the first element must be proven

Question 4

What are the three elements required to establish a duty in a novel duty situation?

Answer 4

1. Foreseeability
2. Proximity
3. Whether fair, just and reasonable to impose a duty

Question 5

What is the requirement of foreseeability in establishing a duty?

Answer 5

Defendant’s negligence created a foreseeable risk of harm to this claimant

Question 6

What is the requirement of proximity in establishing a duty?

Answer 6

There must be sufficient cause and effect relationship between the defendant’s conduct and the harm suffered

Question 7

What are the four situations considered exceptions to the general rule that there is no duty to act?

Answer 7

1. Special relationship between the parties
2. Control over the claimant, e.g, correctional officer over prisoner
3. Actions of third parties under the control of the defendant, e.g., parent over child.
4. Rescue situations

Question 8

In addition to express relationships, what can a special relationship situation arise from?

Answer 8

Where the defendant assumes responsibility towards the claimant or their property

Question 9

What is the duty owed by a rescuer?

Answer 9

To not make the situation any worse

Question 10

On the exam, how might a situation in which a rescuer doesn’t appear to make the situation worse be part of a trap?

Answer 10

If a person decides to rescue, and then abandons the attempt leaving the victim no worse off, they could still be deemed to have made the situation worse if their initial rescue attempt prevented others from helping.

Question 11

What is the requirement for the harm suffered to be within the scope of the duty of care?

Answer 11

If the harm was not within the scope of the defendant’s duty of care, damages will not be recoverable even if the defendant owed a duty and acted negligently

Question 12

What is the standard of care in the context of breach of duty?

Answer 12

Defendant is required to take reasonable care, i.e. an objective and impersonal standard accepted of a reasonable person

Question 13

How is a breach of duty initially assessed?

Answer 13

Whether the defendant fell below a reasonable standard of care

Question 14

What two factors will the court consider in assessing whether the defendant exercised reasonable care?

Answer 14

1. Magnitude of the risk involved in the activity, and
2. Practicability of taking precautions to avoid that risk

Question 15

What two questions will the court ask in assessing the magnitude of risk?

Answer 15

1. How likely is it that harm will occur, and
2. How serious is the potential harm?

Question 16

Is the likelihood of harm assessed at the time or with the benefit of hindsight?

Answer 16

At the time

Question 17

What is expected of a defendant the greater the potential harm?

Answer 17

The more precautions they must take

Question 18

Can an under-skilled defendant rely on this to argue they were not in breach of duty?

Answer 18

No

Question 19

How is the level of competence required of a professional carrying out something which exceeds their skillset determined?

Answer 19

Based on the task they are undertaking, not their level of skill

Question 20

What is required of defendants who are acting within the competence of their skill or profession?

Answer 20

They must meet the level of skill of a reasonably competent member of their profession

Question 21

What is the test for whether a professional fell below a reasonable standard?

Answer 21

Whether they acted in accordance with a responsible body of professional opinion.

Question 22

Is a doctor in breach of duty if they carry out a procedure with due care and skill, but fail to warn a patient about risk, and these risks occur through no fault of their own? Why?

Answer 22

Yes. Because knowledge of the risks, even if they weren’t to be caused by the doctor’s negligence, goes to informed consent.

Question 23

What is the standard expected of a child defendant?

Answer 23

The standard of a reasonable child of the defendant’s age

Question 24

What are the three conditions for res ipsa loquitur to apply?

Answer 24

1. Absence of any explanation for the incident
2. Thing which caused the incident was under the control of the defendant, and
3. Incident would not normally happen if proper care was taken

Question 25

How can a defendant rebut an inference of res ipsa loquitur?

Answer 25

By showing that they did exercise reasonable care

Question 26

What is the admissibility of convictions for criminal offences involving negligence?

Answer 26

They are admissible in civil claims arising from the same incident

Question 27

What is required for causation?

Answer 27

Claimant must show that defendant’s breach of duty caused the loss

Question 28

What are the three stages is establishing causation?

Answer 28

1. Factual causation
2. No new intervening acts
3. Damage not too remote

(2 and 3 are collectively called legal causation)

Question 29

What is the test for factual causation?

Answer 29

But for the defendant’s breach of duty, the claimant would not have suffered the loss

Question 30

What is the collective term given to stages 2 and 3 of establishing causation, to distinguish them from causation in fact (factual caustion)

Answer 30

Causation in law (legal causation)

Question 31

Does the but for test also apply, when there is more than one possible reason for the claimants loss?

Answer 31

Yes.

Question 32

What is the standard of proof for causation?

Answer 32

On balance of probabilities

Question 33

What must the claimant prove when one injury results from different causes acting together?

Answer 33

Claimant must prove that defendant’s breach of duty made a material contribution to the claimant’s loss.

Question 34

Where an injury is divisible, how are damages apportioned, and what does this mean for the claimant?

Answer 34

Damages are apportioned between the defendants according to the share of injury each of them caused.

A claimant must therefore sue all defendants in order to recover in full.

Question 35

How does this differ where an injury is indivisible?

Answer 35

Claimant can recover damages in full from any of the defendants

Question 36

If a claimant recovers in full from one defendant for an indivisible injury, what is the defendant’s option to recover money?

Answer 36

The paying defendant can recover a contribution from the others, having regard to the share of damage caused by each

Question 37

What is the second defendant’s liability where they harm a person already harmed by a previous defendant?

Answer 37

Only to the extent that their negligence made the claimant’s damage worse than it already was

Question 38

What is the effect of a new intervening act?

Answer 38

It will break the chain of causation

Question 39

When will the intervening act of a third party break the chain of causation?

Answer 39

Only if it was not reasonably foreseeable

Question 40

When will the intervening act of the claimant break the chain of causation?

Answer 40

When the claimant acted entirely unreasonably

Question 41

Will an intervening natural event break the chain of causation?

Answer 41

Yes

Question 42

What is the test for remoteness of damage?

Answer 42

Whether the claimant’s damage was a reasonably foreseeable result of the defendant’s negligence

Question 43

What are the two exceptions to the basic rule of reasonable foreseeability with regard to remoteness of damage?

Answer 43

1. Egg shell skull
2. Similar in type rule

Question 44

What does the similar in type concern?

Answer 44

Where the claimant suffers a type of harm which is reasonably foreseeable, but the way in which it occurs is unforeseeable, they can still recover

Question 45

What are the four defences to negligence, and which are partial/complete?

Answer 45

1. Contributory negligence (partial)
2. Voluntary Assumption of Risk (complete)
3. Exclusion of liability (complete)
4. Claim based on illegal act (complete)

Question 46

What is the definition of contributory negligence?

Answer 46

A failure by the claimant to take reasonable care for their own safety which contributes to their harm

Question 47

To avail of contributory negligence defence, does a defendant have to show claimant’s negligence contributed to the happening of the accident?

Answer 47

No, just that it contributed to the harm suffered

Question 48

What is the two part test for voluntary assumption of risk.

Answer 48

1. Claimant had full knowledge of the risk, and
2. Claimant freely and voluntarily assumed the risk

Question 49

Harm caused to whom in what situation is excluded by statute from arguing the voluntary assumption of risk defence?

Answer 49

Passengers in road traffic accidents