Contract or Tort?

Question 1

Difference between contract and tort?

Answer 1

Duties: contract = absolute, tort = reasonable care

Question 2

What are the five elements of negligence?

Answer 2

Duty of care? Breach of duty? Causation? Scope? Awarding damages

Question 3

Duty of care Caparo test?

Answer 3

Is the damage foreseeable? Is there a sufficiently proximate relationship? Is it fair, just and reasonable to impose a duty of care?

Question 4

Duty of care responsibility test?

Answer 4

Has defendant undertaken a responsibility towards claimant to exercise reasonable care/skill?

Question 5

Breach of duty?

Answer 5

Failing to exercise ‘reasonable’ care. No degrees of negligence, there are degrees of care, defined by likelihood of harm and gravity of consequences.

Question 6

Causation?

Answer 6

Apply ‘but for’ test. Balance of probabilities. Does anything break the chain of causation?

Question 7

Scope

Answer 7

Was the breach within the scope of their duty? Was loss foreseeable? Is loss recoverable?

Question 8

Awarding damages?

Answer 8

Restore claimant to position they would have been but for breach of duty. Contribution is where damages can be reduced if claimant has some responsibility.