Chapter 2

Question 1

Torts

Answer 1

Wrongful acts by one person which causes harm to another where the injured party can seek remedies

Question 2

Explain how tort is fault based

Answer 2

The claimant must show that the loss was suffered because the defendant committed a legally recognized wrong. Explain the rest

Question 3

Types of Damages

Answer 3

General damages - monetary compensation for non monetary losses suffered

Special damages - compensation for monetary losses suffered

Question 4

Vicarious Liability

Answer 4

When a person is held liable for the fort of another because they had the power to prevent it or they encouraged it to happen

Question 5

Negligence

Answer 5

The omission to do what a reasonable person would do

Question 6

Reasonable person

Answer 6

A person who possesses the skills of intelligence and judgment required for their own protection and the protection of others

Question 7

Is negligence a breach of duty of care ?

Answer 7

Duh

Question 8

A tort Feasor is liable to compensate a claimant who can show

Answer 8

They owed a duty of care
A loss was suffered as a result of that breach
They failed to demonstrate a duty of are this breaching that duty of care

Question 9

Negligence cases are based on a non contractual relationship therefore

Answer 9

Remedies are non contractual

Question 10

Neighbor principle

Answer 10

One must avoid acts that could be foreseen as injury to their neighbor

Question 11

In the neighbor principle, there is a duty of care where

Answer 11

There is a relationship of proximity between the parties
Damage was reasonably foreseeable
Fair and just in the circumstance to impose a duty of care

If the 3 tests are not satisfied then the claimant has no claim

Question 12

A relationship will be proximate if the advice is given

Answer 12

In a contractual relationship
In a fiduciary relationship
In a special relationship (where the giver of advice knows or ought to know)

Question 13

Standard of care

Answer 13

The degree of care which should be expected of a person in order to discharge his duty of care to others

Question 14

A defendant is only liable …..

Answer 14

For damage caused by the negligent action or inaction. If the loss would have occurred regardless then it is not a direct consequence of the negligence and the defendant is not liable

Question 15

Novus actus interveniens (new intervening cause)

Answer 15

If chain of events between the negligent act and the eventual damage is broken by an unforeseen factor the loss is too remote and the defendant will not be liable

Question 16

Examples of intervening acts which remove liability from the defendant

Answer 16

Actions of a third party which become the real cause of the loss or damage (the defendant is only liable for damages up until the point when the third party intervened)
Actions of the claimant
Natural events unforseeable

Question 17

When is the burden of proof shifted to the defendant ? (Strict liability)

Answer 17

The facts speak for themselves (res ipsa loquitur)
The law imposes strict liability on the defendant

Question 18

Ways a defendant can protect against liability

Answer 18

Volenti non fit injuria - the claimant knew of risk and voluntary contented to it
Contributory negligence- a partial defense where the tortfeasor shows that the claimants own actions or inactions contributed to the loss or damage suffered

Question 19

Is free content to tort an absolute defense ?

Answer 19

Yes

Question 20

What does the limitation act 1980 state

Answer 20

Negligence cases must be brought within 6 years of the negligent act or omission

Question 21

Passing off

Answer 21

Where a persons reputation or identity Is misappropriated by another person

Question 22

What is the main remedy for passing off

Answer 22

Injunction

Question 23

What must a claimant establish to bring a successful case in passing off

Answer 23

Goodwill or reputation attached to the goods and services of the claimant
Misrepresentation by the defendant to the public
Loss or damage resulting from the erroneous belief that goods and services of the defense at are goods and services of the claimant

Question 24

What are equitable remedies

Answer 24

A court may decide on equitable remedies when it believes that paying off the person simply won’t be enough to settle the situation

Question 25

The law of negligence considers foreseeability twice in relation to

Answer 25

Duty of care and remoteness

Question 26

Damage claimed must be

Answer 26

The direct foreseeable consequence of the defendants negligence

Question 27

Chain of causation

Answer 27

Breaking a chain of causation means that there is a disruption to one of the elements of negligence.

Question 28

If a damage suffered was not reasonable foreseeable the defendant is not liable

Answer 28

True

Question 29

Is there automatic liability for economic loss ?

Answer 29

No

Question 30

A holding company is not responsible for the liabilities of its subsidiaries. However it could be responsible if specific circumstances require a duty of care to be imposed

Answer 30

True

Question 31

Equitable remedies

Answer 31

Injunction
Specific restitution

Question 32

What is the rule in nervous shock cases

Answer 32

In order to have a claim, the claimant must suffer shock and illness as a result of
Being close to the events in both time and space
Fearing for one’s safety or that of a close relative

Question 33

A person in a position that requires the exercise of special care will be expected to exercise it

Answer 33

True

Question 34

Damage claimed must be the direct foreseeable consequence of the defendants negligent actions

Answer 34

True

Question 35

Eggshell skull rule

Answer 35

The Eggshell Skull Rule states that a defendant in a personal injury case will be responsible for the damage caused as-is, even if the victim had a pre-existing condition that made him or her predisposed to serious injury.

Question 36

Eggshell wallet

Answer 36

A defendant whose fort causes the claimant to lose money or aggravate losses might be liable to compensate the other party for the whole loss

Question 37

Where is the evidential burden

Answer 37

On the claimant to show that on the balance of probabilities the loss or suffering was due to the defendants breach of duty

Question 38

Defended in tort to escape liability

Answer 38

Volenti non fit injuria - the claimant knew of the risk and voluntarily consented to it

Contributory negligence - a partial defense when the tortfeasor shows that the claimants own actions or inactions contributed to the loss or damage suffered

Question 39

Free consent to try is absolute defense but

Answer 39

Consent to criminal acts does nit constitute Volenti
A person who assumes known risk through compelling motives is not giving free consent
Mere knowledge of a risk does not prove consent

Question 40

Time period to bring in negligence claims

Answer 40

Within 6 years of the negligent act (reduced to 2 years in personal injury claims)

Question 41

Three elements to bringing a successful case of passing off

Answer 41

Goodwill or reputation attached to the goods or services of the claimant
Loss or damage resulting from the erroneous belief that the goods of the defendant are the goods of the claimant
Misrepresentation by the defendant to the public leading them to believe that the goods offered are those of the plaintiffs