FLK1 DR KEY PRE-ACTION STEPS

Question 1

why would a claimant sue a holiday company rather than a negligent coach driver taking them to the holiday destination?

Answer 1

because the claimant would have a contract with the holiday company who breached express/implied terms.

it’s easier to prove an existence of contract rather than a negligence claim.

Question 2

is it better to sue a company/person if you have a contract with them?

Answer 2

yes, it’s easier to prove. it’s easy to prove you have a contract with them but harder to make a negligence claim against someone.

Question 3

if a company is insured and an individual is not, who should you sue? who are you more likely going to succeed with?

Answer 3

the company you have a contract with because they are most likely covered by insurance who can pay damages, unlike an individual who is not.

Question 4

what standard of care is typically expected between road users, and what criteria are used to determine if someone’s conduct falls below this standard?

Answer 4

there is a well-established and recognised duty of care between road-users. The standard of care to be exercised in this situation is that of the reasonably competent driver. The client’s conduct in this case falls below that required standard.

Question 5

is there any allowance for liability just because a driver is newly qualified?

Answer 5

absolutely not.

Question 6

if a passenger failed to wear a seatbelt and got whiplash, does it break the chain of causation and will they be liable?

Answer 6

the passenger’s failure to wear a seat belt will not break the chain of causation because it will not be deemed to be entirely unreasonable conduct on the part of the passenger.

the passenger’s damages may, however, be reduced on the grounds of contributory negligence.

Question 7

what is the limitation period (LP) for a claim in the tort of negligence and when does it start?

Answer 7

6 yrs from when the loss is sustained, NOT when the breach of duty occurs.

Question 8

when does the LP in contract run from?

Answer 8

date of breach, NOT when the contract was made.

Question 9

so in summary, what’s the difference in terms of LP’s in tort and contract?

Answer 9

in contract, LP starts running for 6 yrs from when the date of breach occurs.

in tort, LP starts running for 6 yrs from when the loss is sustained, NOT date of breach.

Question 10

for personal injury cases (PI), when does the LP begin?

Answer 10

it’s for 3 yrs and it runs form the date of which the cause of action is accrued or date of the C’s knowledge.

date of knowledge: when C knows certain facts - like seriousness of injury, its cause and identity of D.

so basically when they sufficient knowledge to bring the claim.

Question 11

what’s the LP for children in PI cases and when does it cease?

Answer 11

doesn’t start to run until they’re 18. because by then, they’ll have sufficient knowledge to make a claim.

it runs for 3 yrs so the claim expires on their 21st bday.

Question 12

what’s the best ADR method if the parties want to solve things quick?

Answer 12

mediation. because it’s quicker and cheaper than arbitration and litigation.

Question 13

even if there is no written contract between the parties saying they should resolve disputes by arbitration, does that prevent them from using arbitration?

Answer 13

no, they can now arbitrate because an issue has arisen and they agreed to solve it this way.

Question 14

what must a mediator NOT act like?

Answer 14

a judge. they’re not an arbitrator so they can’t assess evidence. they’re just there to help parties reach a solution.

Question 15

can a party withdraw from mediation before a solution is reached?

Answer 15

yes. no claim can be made for breach of contract to attempt mediation.

Question 16

what is the standard a newly qualified doctor is meant to meet?

Answer 16

standard of a hypothetical competent doctor in that post.

Question 17

if the doc is inexperienced, should they seek advice from an experienced doc? and would they be liable?

Answer 17

if they seek advice from an experienced doc then they’re not liable.

Question 18

does contributory negligence apply to the C or D or both?

Answer 18

only available to the C - it’s the conduct of the C. A D cannot be contributory negligent.

Question 19

can mediation lead to a compromise seeking both parties’ objectives?

Answer 19

yes, and that will be effective when resolving the dispute.

Question 20

are arbitration hearings held in public or private?

Answer 20

in a private setting.

Question 21

who can enforce an arbitration award? and how?

Answer 21

the party that has successfully been sued and they can apply to high court to enforce it like a court judgment

Question 22

what proposed solution aligns with the objectives of pre-action conduct and protocols?

Answer 22

only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the expert issues.

Question 23

what can the courts do if a party fails to consider ADR proposals by another party? and how much is too much?

Answer 23

the court may impose sanctions for non-compliance including that the party at fault pay additional costs, known as costs on an indemnity basis.

normal rate can’t exceed 10% above base rate.

Question 24

can a court order parties to take part in ADR?

Answer 24

no. they can be encouraged (judicial encouragement) but never forced.

Question 25

what obligations does a mother have when she possesses a controlling relationship over her son, particularly in terms of preventing harm to third parties, like the motorcyclist in this scenario?

Answer 25

the mother owes a DOC to the motorcyclist because the mother has a relationship of control over her son and, therefore, she has a duty to take positive action to prevent harm being caused to third parties, such as the motorcyclist.

Question 26

what is the general rule in relation to omissions and what is the exception to that rule?

Answer 26

the general rule is that there is no duty to act BUT the exception is if the person has a relationship of control over another person.

Question 27

what is the purpose of damages for breach of contract?

Answer 27

to put the C in a position they would have been in if the contract had been properly performed.

Question 28

what are the factors that a court would balance in deciding whether or not there is a breach of duty?

Answer 28

foreseeability of both the risk of harm and the severity of potential injury, cost of taking precautions, public benefit and common practice.

Question 29

does a DOC arise from an omission to act?

but if you had a special relationship, do you need to act?

Answer 29

no, it does not. no DOC for omission to act.

so you don’t need to help an injured person because you don’t owe them a DOC.

the exception is a special relationship.

Question 30

when does an own interest conflict arise (ethics)?

Answer 30

an own interest conflict is any situation where the solicitor’s duty to act in the best interests of a client in relation to a matter conflicts with the solicitor’s own interests in relation to matter.