Negligence

Question 1

Differences between contracts and torts?

Answer 1

No prior relationship. Damages are linked to what position they would be in if it never happened not if it had (contractual terms being performed properly). The limitation period is 6 years and then 3 for personal injury (flat 6 for breach of contract).

Question 2

What are the main elements of tort?

Answer 2

An act or omission. Damage or injury to C caused by act or omission (causation). The presence of legal liability.

Question 3

What is negligence?

Answer 3

The breach of the duty to take care resulting in damage to another.

Question 4

What do you have to prove for negligence?

Answer 4

A duty of care was owed. D breached it. Damage or loss was suffered as a consequence.

Question 5

What is the duty of care? Who owes it?

Answer 5

There is a duty to take reasonable care to not cause FORESEEABLE harm to others. This is important because you can’t stop what you didn’t know was coming. It is owed to all people even without a contractual relationship as a way of getting around the privity. Basically anyone who could be impacted as a consequence of your actions you owe a duty of care to.

Question 6

When can claims for financial loss be made?

Answer 6

When there is a special relationship between parties and an ability to prove that there was a financial loss suffered following a reliance on that special relationship.

Question 7

What limitations are imposed?

Answer 7

If it would contradict public policy e.g an army officer and one of his men die. If the outcome was not reasonably foreseeable. If there was sufficient proximity and closeness for a duty of care, and if it fair and just to apply one to the individual.

Question 8

Who has to prove that there has been a breach?

Answer 8

The claimant is responsible for proving that there was a breach and that D didn’t take reasonable care.

Question 9

What is res ipsa loquitur?

Answer 9

The thing speaks for itself, what happened to the C and what they suffered is very obviously the result of a breach and there is no need to try and prove it. The thing still has to have been in the control of the defendant. D is the required to prove that it was not their negligence.

Question 10

What is the standard of care people are held to?

Answer 10

That of the reasonable man. What would have reasonable man have done to ensure due care - did the D do this? There is no expectation to be skilled in any trade or profession, they are just the reasonable man.

Question 11

What are the principles that alter the standard of care?

Answer 11

Particular Skill - if there is a particular skill that the reasonable man would not have then the standard shifts to be that which a reasonable person of that skill would have. Lack of skill - it doesn’t matter if you are fully or part qualified in your skill, it is one standard for all. Lack of hindsight - it has to be what you knew at the time, there can be no discussion of facts or info that came out later. Body of opinion - general practice and body of opinion in that skill area to be followed. Advantage and risk - What were the benefits and risks of the defendants actions. Emergency - was there an emergency that led to the negligent behaviour. Vulnerability - was C vulnerable and D aware of it - higher standard of care expected e.g children.

Question 12

What must the claimant demonstrate when making the claim?

Answer 12

That the loss was the direct result of the breach of the duty of care. No other factors contributed and C would not have suffered regardless of this conduct.

Question 13

What is a novus actus intervenus?

Answer 13

An act that comes in and alters the chain of events - happens after the breach and can be proved to have caused or contributed to the breach. Causes D’s liability to cease.

Question 14

Which types of loss are normally recoverable?

Answer 14

Personal injury, damage to property, financial loss connected to personal injury e.g blinded so cannot work forever.

Question 15

What type of loss is rarely recoverable?

Answer 15

Financial loss. As in purely financial. As in just your ipod was damaged in itself, it caused no second hand damage.

Question 16

What is the difference between the impact of negligent conduct versus negligent statements?

Answer 16

Negligent conduct will likely effect only a small group of people and so there is evidence it is not too remote. There is a chance a larger group of people could rely on negligent misstatements and that could create issues for remoteness.

Question 17

What did Hedley Byrne create?

Answer 17

A duty of care for the provision of assistance in circumstances where there is a special relationship. This allows for losses to be awarded on a purely financial basis in this finite set of circumstances only.

Question 18

What makes a special relationship?

Answer 18

D in business of giving professional advice. Advice had to have been given in business context, not social. Did D know that C would rely on that advice.

Question 19

What is the case for auditors?

Answer 19

There is no duty of care owed by auditors to the public who rely on accounts they create. There is also no duty of care owed by to shareholders who purchase additional shares.

Question 20

What are the four elements of Caparo?

Answer 20

Was it FORESEEABLE that is what the info would be used for? Was there a close enough PROXIMITY between C and D? What was the main PURPOSE of the information provision? Would it be JUST AND EQUITABLE to impose a duty? Must also consider whether there is anyone who has specifically taken responsibility for the info e.g a Director or Partner.

Question 21

What does S507 of the CA 2006 say?

Answer 21

It is an offence for auditors to act recklessly and cause an audit report to contain misleading information.

Question 22

What do S532 and S534 of the CA2006 say?

Answer 22

A company cannot indemnify its auditors BUT the auditors can limit their liability. This has to be approved by the members, cannot exceed one year and must only limit liability to a just and reasonable amount.

Question 23

What is the main remedy?

Answer 23

Damages to return C to the place that they would have been had they not suffered the damage/loss/injury. BUT it must be the case that said damage was reasonably foreseeable.

Question 24

Will someone get damages so long as it was foreseeable?

Answer 24

Yes it is irrelevant whether the severity or cause were foreseeable. It just has to be the case that the thing that happened could be foreseen - was a likely and predictable outcome. Can be far worse than you ever would have expected.

Question 25

What is the defence of contributory negligence?

Answer 25

If the claimant is partly to blame then this will reduce the damages. E.G road accidents where C is not wearing a seatbelt.

Question 26

What is the defence of volenti non fit injuria?

Answer 26

C has willingly consented to the risk of loss or damage. Requires an actual positive action be taken to prove that they knew the risk, cannot just be a knowledge of the risk.

Question 27

What is the defence of Exclusion Clause?

Answer 27

The clause seeks to exclude or limit liability - governed by UCTA 1977. These can also be applied to acts of nature that couldn’t have been predicted and D shouldn’t be held liable for.

Question 28

What is vicarious liability?

Answer 28

Being liable for the acts of others, so an employer for the act of their employee. This is usually the case as the employer will have the means to provide the damages to C whereas the employee might not. Could also be liable as an employer for any agency workers.

Question 29

When would an employer be liable?

Answer 29

When the employee commits the tortious act in the course of their employment - so whilst they are actually doing their job. Has to be within the USUAL scope of work.