EXAM - unit 1 Flashcards
how long is the exam?
1 hour and 30 minutes - 90 minutes
20 minutes respectively should be given to read the questions, read activity 1 and 2 and the case facts and plan.
What is activity 1?
ACTIVITY 1 - Prepare client file notes on the law of negligence, show how the law of negligence applies to the specific case and establish the likely outcome
ACTIVITY ONE STRUCTURE
introduction -
- explain what must happen for negligence to occur and what is negligence, what is burdon of proof.
state what you will be outlining in your notes.
DUTY OF CARE
- explain what is duty of care
- always state key case of robinson v chief constable of west yorkshire - first case that established duty of care
- case in the prelease ALWAYS MENTION
- apply any existing precedents - other cases
- apply to case - ‘in the case of….’ , ‘owes a duty of care to..’
- reason by analogy e.g blyth v birmingham waterworks, wells v cooper etc - negligence
BREACH OF DUTY
- explain what is breach
- the objective ‘reasonable person test’ - Blyth v Birmingham
- apply to case - standard of care!
- special characteristics of the defendant: professionals, learners, children - cases
- Risk factors - what is the reasonable person?, special characteristics of the claimant, risk of harm, taking adequate precautions, social utility
DAMAGES
- Factual causation ‘BUT FOR’ test - Barnett v Chelsea and Kensington hospitals
- remoteness of damages - wagon mound
- type of damage caused
- think skull rule
- intervening act
- unknown to science
LIKELY OUTCOME FOR ____
- ‘…. is likely to be liable to ….. in negligence’
summarize why and how all the stages of negligence have occurred
‘ … owed a duty of case based on precedent to …’
‘ …. breached that duty by failing below the standard ….’
‘ …. caused reasonable foreseeable harm based on a straightforward application for the ‘but for’ and remoteness test’
LAYOUT OF ACTIVITY 1 ?
client notes should be presented as followed:
Client: (insert clients name)
law firm:
date:
state what type of claim it is
introduction
duty of care
breach of duty
damages
conclusion - likely outcome of the case
State introduction for activity 1
INTRODUCTION:
‘Negligence refers to the failure to act or acting in a way that is not of the reasonable person. For negligence to occur, you need to establish 3 elements of negligence which are: duty of care, breach and damages. Burdon of proof is established in a case through the claimant providing their case on a balance of probabilities meaning the defendant must be over 50% liable. I will be outlining __ personal injury claim and explaining whether negligence has occurred.’
what is negligence?
Negligence refers to the failure to act or acting in a way that is not of the reasonable person.
what is burden of proof
Burden of proof is established in a case through the claimant providing their case on a balance of probabilities meaning the defendant must be over 50% liable.
what is duty of care
duty of care refers to the legal obligation of an individual to others to ensure they are not harmed by always acting in the best interests of individuals and others, not to act or failure to act (omission) in a way that results in harm and acting within the standard that is expected.
state duty of care cases
DUTY OF CARE cases
- Robinson v Chief constable of West Yorkshire - established the test for funding a duty of care and caparo test for new and novel cases, Also public authorities should be subject to the same liabilities in tort law as private individuals.
- Donoghue v Stevenson - established neighbour principle in the law of negligence which sets out the idea that the duty of the reasonable person is to look after their neighbour and to do their best to ensure that no harm come to their neighbour through their action s this determines whether the defendant owes a duty of care in any situation. Also establishes the manufacturer principle between a manufacturer and consumer
- bourhill v young - proximity may arise because they are close in time and space when the event occurs or because of the closeness of relationship to the person injured by the defendant. - sufficient proximity and foreseeability means defendant owes duty of care to claimant
- kent v griffins
explain breach
Breach refers to when an established duty of care is broken by the defendant failing to reach the standard of care required of a reasonable person would do while while performing the task competently
Explain breach of duty cases
objective ‘reasonable person test’ - blyth v birmigham waterworks
special characteristics of defendant -
professional - Bolam v Frier Hospital Management committee
learners - nettleship v weston
children - mulin v richards
risk factors:
- special characteristics of the claimant - paris v Stephney borough council
- risk of harm - bolton v stone and miller v jackson
- taking adequate precautions - Latimer v AEC
- social utility (policy) - Watt v hertfordshire county council
explain what is the reasonable person
the reasonable person refers to someone who takes a standard of care that is sensible given the risk involved which can vary for people who are professionals, learners or children hence an objective standard is applied to these different types of defendants.
explain whether the type of precautions the reasonable person will take
The reasonable person will take precautions against likely risks and will take care if they know there is a higher risk as if they do so they will not breach their duty of care but the reasonable person cannot take precautions against every eventuality
explain what is meant by damage
Damage refers to the third element of negligence where a breach of duty must have caused the damage, whether it is injury or loss
state cases that relate to damages
DAMAGES CASES:
- Factual Causation ‘but for’ test - Barnett v Chelsea and Kensington hospitals
- intervening act which breaks factual causation - knightly v johns
- Remoteness of damage - wagon mound
- type of damage caused - Bradford v Robinson Rentals
- the thin skull rule - Smith v Leech Brain and Co
- Unknown to science - Doughty v Turner LTD
explain the caparo test and cases that establish parts of the test
Robinson v Chief Constable West Yorkshire - establishes the caparo test for new and novel cases which do not have an existing precedent
caparo test:
- Is it reasonably foreseeable that a person in the claimant’s position would be injured? = kent v griffins, caparo v dickmans
- Is there sufficient proximity between 2 parties in time and space or relationship = Bourhill v Young, Mcloughlin v O’brian
- Is it fair, just and reasonable to impose liability on the defendant? = Hill v chief constable of west yorkshire
explain what is meant by factual causation
factual causation is demonstrated through the ‘but for’ test. This test determines whether ‘but for’ the defendants act or omission, the injury or loss would have occurred. If yes, the loss or omission would still have occurred, the defendant is not liable whereas if no, the loss or omission would have not occurred, the defendant is liable
explain what is an intervening act
If there is no factual causation, where there is an intervening event that becomes the factual causation in an incident. The intervening act breaks the chain of causation as there is no liability in negligence if there is no factual causation.
what is activity 2 ?
ACTIVITY 2 - prepare a solicitors letter that shows understanding of the likely damages a claimant can expect if successful, the ways in which their claim can be funded and other possible sources of advice and the appropriate track and civil court and why ADR may be or may not be suitable for the case etc
ACTIVITY 2 STRUCTURE
Dear ____,
ref. personal injury compensation claim
introduction - ‘Thank you for asking for further advice and information on the rest of your case. I understand that want further advice on the likely damages you could expect the ways in which your claim can be funded, alternative sources of advice and which method of dispute resolution would be preferable for your case’.
paragraph 1 / linked to introduction - i am writing to you in relation to your claim regarding the incident where (briefly summarise)
paragraph 2 - DAMAGES
- explain what is the aim of damages which is to essentially compensate the claimant and put the claimant back in their pre-negligence position.
- types of damages - special damages and general damages / pecuniary and non-pecuniary losses
- apply damages to case
- explain the payment of damages - lump sums or structured settlements - apply to case
- reduction in damages such as mitigation of loss or contributory negligence
paragraph 3 - SOURCES OF FUNDING AND ALTERNATIVE SOURCES OF ADVICE
- explain that solicitors offer the most experienced advice but there are alternatives. explain any advantages or disadvantages of these sources of advice
- types of sources of advice: civil legal advice (CLA) - government funded, citizens advice bureau, law centres, trade unions, internet - online advice sources, insurance policies, solicitors and barristers
- explain how representation in cases can be expensive and so looking for alternatives is often sensible if the client doesn’t have their own resources / savings to pay. explain advantages and disadvantages
- types of sources of funding - pro bono schemes, conditional fee agreements (CFA), insurance, trade union memberships, own resources
- advantages and disadvantages of sources of funding
paragraph 4 - CIVIL COURT PROCESS AND ALTNERTAIVES TO COURT
- explain the civil court process to the client - given the amount of money involved in client’s cases and the complexity / simplicity of calculating damages.
- ‘ cases will almost certainly be heard on …. track … in the ….. court’
- this process is controlled by judges throughout but judges will try to first encourage an out of court settlement and if an out of court settlement is not possible they trial will be likely to happen in six months and come to court.
- explain that civil courts could be expensive and in some cases legal aid is not available for personal injury claims, so recommend ADR as resolving their dispute
- types of ADR - negotiation, mediation, conciliation, arbitration.
- states advantages and disadvantages of ADR and
of the court system
- explain tracking system of courts
Conclusion - summarise the process for the client with the likely court and likely track and conclude the overall likely outcome.
based on the law and evidence reviewed ‘…. will succeed and receive significant damages. Their case will be heard on the ____ track in the ____ court. They will not receive or will receive legal aid for a personal injury case but has a very attractive case for a CFA…. An out of court settlement is also quite possible but Adam should take professional advice about what this is appropriate. ADR should be considered but given the likely live of damages, it would lack the authority of a court based outcome and award that can be enforced’
ACTIVITY 2 LAYOUT
insert address
solicitors firm
Dear _____ ,
Ref. Personal Injury Compensation claim
introduction - ‘Thank you for asking for further advice and information on the rest of your case. I understand that want further advice on the likely damages you could expect the ways in which your claim can be funded, alternative sources of advice and which method of dispute resolution would be preferable for your case’.
paragraph 1 / linked to introduction - i am writing to you in relation to your claim regarding the incident where (briefly summarise)
activity 2 conclusion
Conclusion - summarise the process for the client with the likely court and likely track and conclude the overall likely outcome.
based on the law and evidence reviewed ‘…. will succeed and receive significant damages. Their case will be heard on the ____ track in the ____ court. They will not receive legal aid for a personal injury case but has a very attractive case for a CFA…. An out of court settlement is also quite possible but Adam should take professional advice about what this is appropriate. ADR should be considered but given the likely live of damages, it would lack the authority of a court based outcome and award that can be enforced’
activity 1 conclusion
How can claim be challenged ?
what facts go against the claimant in the case?
LIKELY OUTCOME FOR ____
- ‘…. is likely to be liable to ….. in negligence’
summarize why and how all the stages of negligence have occurred
‘ … owed a duty of case based on precedent to …’
‘ …. breached that duty by failing below the standard ….’
‘ …. caused reasonable foreseeable harm based on a straightforward application for the ‘but for’ and remoteness test’
refer to cases in prelease
What is damages and what is the aim of damages in negligence?
Damages are the amount of money that is awarded as compensation to the victim for the value of goods destroyed or for their repair to the condition they were in before the incident. (compensation for loss or injury)
The general aim of damages in negligence is to put the successful claimant in the same position as they would have been in if the negligence had not occurred
what is the difference between damage and damages?
damage is a legal concept which is the loss or injury suffered as a result of breach of duty whereas damages is the amount of money that is awarded to compensate the victim for their loss or injury
state the two types of damages
Damages can be divided into general damages and special damages
explain special damages
Special damages which are also referred to as pecuniary losses are financial losses or losses that can be calculated at the time of the trial. This includes a loss of salary to date, damage to property and expenses such as travelling to the hospital for appointments as a result of an accident
explain general damages
General damages refer to non-pecuniary losses that are all other forms of financial compensation such as loss of future earnings, pain and suffering, loss of amenity and future medical costs.
There are two elements to general damages:
- Damages for the effects of the injury - pain, suffering and loss of amenity.
- Damages for future financial loss - loss of future earnings and the effect of loss of expectation of life
In relation to general damages, how should the person take their victim?
In general damages, the person must take their victim as they find them as the amount will vary with the claimant in each case.
e.g scaring of a normal person’s face will end up going in a smaller sum compared to scaring the face of an actor or model who cannot work in the same roles as before as part of their work is to use their face.
what are pecuniary losses?
pecuniary losses refers to easily calculated financial losses. This relates to damages to goods and lost earnings, and also may expenses incurred as a result of an accident, such as those relating to travel
what are non pecuniary losses?
non pecuniary losses damages relate to non-financial losses / damages that aren’t rooted in financial loss, such as injuries, pain, grief, suffering
explain pain and suffering in relation to general damages
Pain and suffering is very difficult to calculate as every case is different and varies. The amount will vary with the individual but will take into account medical reports and other evidence in court.
calculations for pain and suffering and loss of amenity often use calculations based on awards in previous cases.
Lawyers may also look at the judicial college’s guidelines to give indication on the most likely amount that will be awarded.
The test is subjective (based on personal feelings and opinion) and the court will assess the claimant’s past and future position as at the date of trial.
explain loss of amenity in relation to general damages
Loss of amenity is the reduction in the ability to perform everyday tasks and enjoyment of life. This can include all manner of interference with hobbies, pastimes, loss of a skills and an impact on life, as well as everyday tasks such as getting dressed.
A claimant is not compensated for the physical injury itself. The compensation is for the loss suffered as a result of that injury such as not being able to reach the full earnings potential. The amount calculated from awards in comparable cases that has been decided in courts.
loss of amenity can cover compensation for being confined in hospital and/or being left with a disability that stops you from doing things you could do before the injury occurred
explain the distinction between damages for loss of amenity and damages for pain and suffering.
The distinction between damages for loss of amenity and damages for pain and suffering can be seen in the example of someone in a coma.
Clearly, when someone is in a coma there is total loss of amenity as the the victim can do nothing. However, little or nothing would be awarded for pain and suffering since the claimant has no subjective awareness of the pain and suffering
explain loss of earnings in relation to general damages
Special damages for loss of earnings up to trial are relatively easy to calculate. Future losses are more difficult to calculate as they can only be estimated. However, the calculations used are designed to reflect an appropriate amount.
Claims for loss of earnings are common in personal injury claims and can be very large and very complicated depending on the circumstances of a defendant e.g. a student who is minor - how would they assess their loss of future of earnings or celebrities?
explain future medical expenses in relation to general damages
In some cases, the impact of an injury is such that the claimant requires professional nursing care and future medical treatment. In claims arising from severe brain injury, this may be the biggest element of the claim. All the court can do is estimate the cost of this and include it in the award.
explain mitigation of loss in relation to damages in negligence
Every claimant is required to mitigate their loss. This means claimants are required to take reasonable action to keep their losses to a minimum and defendants cannot be forced to pay for avoidable loss. e.g. if involved in a car crash you may hire a car while the original car is repaired. The person who hit you would expect to hire you a replacement car equivalent to the cost of the car you owed and must be in reasonable expense.
This means you must keep your losses to a minimum and follow the original aim of compensating the claimant to put them back in the position they were in before the negligence.
explain the principle of contributory negligence in relation to damages
Contributory negligence occurs when the claimant is found to be partly responsible for the damage they suffered.
The main principle of contributory negligence is that if the claimant has contributed to the losses, then a proportion of the damages will be lost. The proportion lost depends on the amount to which the claimants own acts are negligent. The reduction can be between 0% and 100%
However, there are some general guidelines to contributory negligence. For example, not wearing a seat belt does not cause an accident but it can contribute to the extent of the injury. A similar principle could apply where a person knowingly allows themselves to be driven in a car with a drunk or drugged driver.
what does the law reform (contributory negligence) act 1945 state?
The law reform (contributory negligence) Act 1945
The act of parliament sets out the law. The court can reduce damages:
‘to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’
The court is given guidance so that it can reduce damages ‘to such extent as the court thinks just and equitable (reasonable) having regard to the claimant’s share in the responsibility for the damage. This means that every case depends on the evidence and all relevant circumstances. There are occasions where the court can find 100% contributory negligence.
explain the legal principle of sayers v harlow urban district council (1958)
Sayers v Harlow Urban District Council (1958)
Legal principle: A proportional amount of the damages can be lost if the claimant contributed to their damage or loss as in the case, the court decided that she had contributed to her fall by her own negligence as she tried to escape from the locked cubicle and thus because of this she lost 25% of her damages because of contributory negligence.
explain the concept of automatic contributory negligence
There are number of examples where contributory negligence is seen automatically. One of them is the failure to wear a seatbelt in a vehicle fitted with one.
However, the court still takes into account whether the seatbelt would have:
1 - prevented injury or
2 - reduced the severity of the injury, or
3 - made no difference to the injury
Typically the three circumstances above would result in a 25% reduction, a 15% reduction and no reduction in the damages awarded
how are damages usually payed?
Damages are usually paid either in a lump sum for special damages or in a structured settlement used for larger awards.
explain the payment of damages
Damages are compensation and therefore need to be paid in such a way that the claimant is not advantaged or disadvantaged. For example, a claimant is potentially advantaged if a very large sum is paid up front to cover future needs but those needs never occur because the claimant dies shortly after they receive the sum. This would not reflect the costs and losses to the claimant as a result of the accident and could encourage some to hasten the death of the claimant in order to inherit the money.
explain what is a lump sum in relation to payment of damages
A lump sum is when all damages are paid all at once.
The only problem for the claimant is that the defendant may not have enough money to pay the damages if not insured and for very large amount of damages, it may be better for both parties to organise payment through the use of a structured settlement.
In most cases, this is not problematic as most claims are settled by insurance companies. However, if not paid through an insurer, the claimant may have difficult getting the payment from the defendant. Special damages are always paid by a lump sum.
what is a structured settlement?
A structured settlement is a settlement usually used in accident and medical negligence claims as an alternative to the payment of a lump sum by the defendant to the claimant.
A structured settlement may include:
- interim payments - to cover expenses already made
- regular instalments - usually paid through an annuity so there is a regular income throughout the injured person’s life
- a further lump sum payment to cover extra costs that are not covered by the annuity payment
what are three parts to a structured settlement?
there are often three parts to a structured settlement:
1- a lump sum payment to cover costs and expenses met by the claimant before settlement of the claim. (This would include medical and legal costs up to the date of the settlement of the claim - in other words, the special damages)
2- A series of regular monthly payments, usually paid through an annuity as part of the general damages (This usually lasts for the lifetime of the claimant and is designed to meet future care costs and loss of earnings)
3- A further lump sum to cover contingencies that may not be met by the general damages annuity payments
state reasons as to why a structured settlement may be used?
A structured settlement may be used so that:
- the injured person does not have to manage a large sum of money
- there is less chance of the claimant ‘blowing’ the money and becoming destitute
- there is less risk of running out of money for care
- the claimant will get compensation and not more than they need
- life expectancy is not an exact science so finances are certain for the future
(Walton v Calderdale NHS trust 2006 - the trust paid the claimant who had a life expectancy of 70 years when the settlement of the case was reached - an annual payment of £50,548, index linked, in respect of his annual costs rather than a lump sum - family and friends cannot exploit the injured person and do not ‘get a bonus’ on the death of a claimant.
summarise reduction in damages with the concepts of the mitigation of loss and contributory negligence
REDUCTION IN DAMAGES:
Mitigation of loss: claimant cannot claim for loss that could’ve been avoided by the taking reasonable steps - marcroft v scruttons
- Contributory negligence: claimant’s damages are reduced according to their level of blameworthiness - Brannan v Airtours
explain what is meant by the burden of proof
The burden of proof refers to where the claimant must prove their case on a balance of probabilities. This standard means the court must be satisfied that the event in question is more likely to have occurred than not.
