LAW P2 TORT (NEGLIGENCE)

Question 1

What is the definition of negligence?

Answer 1

Negligence is defined under common law as an act to do something a reasonable person would not do, or an omission to do something which a reasonable person would do.

Question 2

What are the 4 points which need to be satisfied for negligence to be proven?

Answer 2

• Must be a duty of care
• Must be a breach in duty
• The breach caused harm in fact
• The harm was as a direct breach of the duty and not far removed

Question 3

What is the definition of duty of care?

Answer 3

Duty of care refers to the circumstances and relationships which the law recognises as giving a rise to the legal duty to take care.

Question 4

Where was duty of care established?

Answer 4

Duty of care for personal injury and property damage was established by lord atkins neighbour principle in donoughue v stevenson.

The caparo test built on the neighbour principle in robinson v chief constable of west yorkshire, however the caparo test is only to be used in novel cases.

Question 5

What does the neighbour principle state?

Answer 5

The neighbour principle states that you must take rasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Question 6

What are the 2 requirements from the neighbour principle?

Answer 6

• The harm was reasonably foreseeable
• there must be a relationship of proximity between the defendant and claimant

Question 7

What are the cases for the 2 neighbour principle requirements?

Answer 7

• Home office v dorest yacht co, it was reasonably foreseeable that harm would occur
• Bourhill v young, there was not sufficient proximity between the claimant and defendant when the harm occured.

Question 8

What are the cases for the final 3 points of negligence?

Answer 8

• Nettleship v Weston, a learner driver owes the same duty of care as a qualified driver
• Smith v Leech brain, the defendant is liable for the full extent of the claimants injury
• Montgomery v Lanarkshire health board, doctors must inform patients of risks and seek consent

Question 9

In causation for negligence, what must the claimant prove?

Answer 9

The claimant must prove that the harm suffered was due to the defendant actions.

Question 10

How can the claimant prove that the harm suffered was due to D’s actions?

Answer 10

This can be proven using the but for test - asks ‘but for D’s actions would harm have occured’

Question 11

What is the case for the but for test?

Answer 11

Barnett v chelsea and kensington hospital, if the result would not have occured but for D’s actions, then D is not liable

Question 12

What is remoteness of damage?

Answer 12

Remoteness of damage refers to the requirement that the damage must be of a foreseeable kind.

Wagon mound no1 provides that a D is only liable for damage which was of a foreseeable kind.

Question 13

What is the case for remoteness of damage?

Answer 13

• Hughes v Lord advocate, the damage was not too remote and it was foreseeable