Duty of Care and Breach of Duty of Care

Question 1

What are the General Remedies of a Tort?

Answer 1

1. Damages to compensate for the infrignement of the interest
2. A court order to stop the infrining activity (INJUNCTION)

Question 2

Do all Torts require fault?

Answer 2

No, there are strict liability Torts.

As soon as the act is committed there is liability regardless of the defendant is at fault.

Question 3

What is Basic Negligence?

Answer 3

Basic Negligence occurs when there was:

1. A duty of care
2. A breach of that duty
3. Damage (that was factually caused by that breach, and is not too remote)

Question 4

What are the 3 factors required for there to be a duty of care?

Answer 4

1. D needs to forsee the damage they will cause
2. D must have a proximate / close realtionship with the claimant
3. It must be fair, just, and reaosonable to impose a duty

Question 5

When is there a breach of the duty of care?

Answer 5

There is a breach of ones duty of care if they fall below the relevent ‘STANDARD OF CARE’

Question 6

Who has the burden of proof in a Basic Negligence proceeding?

Answer 6

The claimant must prove on the balance of provabilities that thedefendant has breached the standard of care.

Question 7

What is the legal test to determine the standard of care for non-profesionals?

Answer 7

‘Does the defendants standard of care fall below what is reasonablly expected?’

‘A person is not negligent if his actions confrom to the standard of a prudgent or reasonable person’

Question 8

What is the legal test to determine the standard of care for profesionals?

Answer 8

1. Does D’s Conduct fall below the standard of the ordinary, competent member of that profession? (Yes for liability)
2. Is there a substantial body of opinion within the profession that would support the course of action taken by D? (No for liability)

Question 9

What test applies (non-proffesional or professional) to learners when establishing the standard of care?

Answer 9

Learners are subject to the same standard of care as professionals.

Question 10

What is the standard of care for children and young people?

Answer 10

They are judged by the standard of a reasonable person at that age

Question 11

What is Res Ipsa Loqutur and what is its affect?

Answer 11

‘Things Speak for itself’

This alows for the negligence to have occured from the very nature of an accident having taken place.

It changes the burden from being on the claimant to prove the defendant was negligent to the defendant having to rebutt the presumption of negligence.

Question 12

What is the 3 part test for establishing Res Ipsa Loqutur?

Answer 12

Once a duty of care is established, the three part test is used:

1. The object which caused the damage was under the control of the defendant
2. Without negligence, the accident would not have happened.
3. There is no other causal explanation for the accident (and the cause must not be known)

Question 13

What is the 2 part test to establish the defendant caused the damage / injury?

Answer 13

1. Factual Causation - using the but for test
2. The damage must be reasonably foreseeable, and therefore the claim is not too remote.