Negligence

Question 1

what is a tort?

Answer 1

civil wrong and covers situations where damage has been incurred but there is no pre-existing contractual relationship

Question 2

what conditions must have been satisfied for a tort to have occured

Answer 2

• there must be an act or omission by the defendant
• the act or omission must have directly caused damage or injury to the claimant
• the courts must be able to establish a legal liability as a result of the damage
• Due to the damage, the defendant must owe the claimant a remedy

Question 3

what is negligence

Answer 3

breach of a legal duty to take care

Question 4

In order for an action in negligence to succeed, the claimant must prove the following:

Answer 4

• The claimant must prove that the defendant had a duty to take care to not cause harm
• The claimant must prove that the defendant did not take reasonable care
  -It must also be proved that because of the defendant’s breach the claimant suffered loss or damage

Question 5

duty of care

Answer 5

there is a duty to take reasonable care not to cause foreseeable harm to others

Question 6

ratio decidendi

Answer 6

manufacturer owes a duty of care to the customer

Question 7

what are the limits of the duty of care?

Answer 7

• policy
• foreseeability
• fairness
• proximity

Question 8

Breach of duty of care

Answer 8

The second element that a claimant must prove in an action for negligence is that there was a breach of the duty of care by the defendant

Question 9

Res ipsa loquitur (‘the facts speak for themselves’)

Answer 9

This rule applies where:
- the cause of damage is not known

• the damage would not have arisen without the defendant’s lack of care
• the thing which caused the damage was under the management and control of the defendant

Question 10

principles for standard of care:

Answer 10

• particular skill
• lack of skill
• lack of hindsight
• body of opinion
• advantage and risk
• emergency
• vulnerability

Question 11

Proof of causation - the “but for test”

Answer 11

This is a question of fact
Would the damage have occurred “but for” the negligent act?
The remoteness of damage will be considered by the court

Question 12

the courts will usually award damages for the following losses:

Answer 12

• loss as a result of personal injury
• damage to property
• financial losses directly connected to personal injury.
  Pure financial loss are very rarely recoverable

Question 13

3 elements of the tort of negligence are:

Answer 13

• duty of care
• breach of duty of care
• resultant loss

Question 14

Professional advice and negligent misstatement

Answer 14

no difference between liability of negligent misstatement and negligent acts as they can suffer the same amount
- however with misstatement this can reach more people and lead to more damage

Question 15

if there is a special relationship between parties, the three elements must be considered

Answer 15

• was the defendant in the business of giving professional advice
• was the advice given in a business contect rather than a social context?
• did the defendant know that the claimant in particular would rely on the advice?

Question 16

true or false?
A special relationship only needs to be present if there are PURELY financial losses.

Answer 16

TRUE
A special relationship only needs to be present if there are PURELY financial losses. For financial losses linked to physical harm, it is not a requirement.

Question 17

Companies act liability - S.507

Answer 17

It is an offence for an auditor to recklessly cause an auditor’s report to contain misleading or false information, punishable by a fine.

Question 18

Companies act liability - S.532

Answer 18

Any provision exempting auditors from, or indemnifying them against, liability for negligence in relation to providing audited accounts will be void.

Question 19

Companies act liability - S.534

Answer 19

A company may enter into a liability limitation agreement with an auditor, limiting their liability for negligence in the course of auditing accounts.
- approved by members
- no more than one year
- limits liability to an amount that is just and reasonable in all circumstances

Question 20

Calculation of damages for negligence in tort

Answer 20

Damages for negligence are calculated to put the claimant back in the position they would be in if the negligent act had never happened.

Question 21

Type of damage

Answer 21

Compensation will only be awarded to the claimant if the type of loss they have suffered is a reasonably foreseeable consequence of the defendant’s negligence.

Question 22

Extent of loss

Answer 22

If the court feels the type of loss the claimant has suffered is foreseeable, they will award damages for all losses of that nature even if the extent of the loss is more severe than would have been reasonably foreseeable.

Question 23

Defences - Contributory negligence

Answer 23

Where the defendant can show that the damage or loss suffered was partly due to the claimant’s fault, damages will be reduced in proportion to his degree of fault

Question 24

Defences - Volenti non fit injuria (literally ‘to a willing person no injury is done’)

Answer 24

the claimant freely agrees to the risk of loss

Question 25

exclusion clause

Answer 25

if term within the contract between defendant and claimant

Question 26

what is vicarious liability?

Answer 26

Vicarious liability arises when one person is held liable for another’s actions

Question 27

obiter dicta

Answer 27

everyone owes a duty of care to their neighbour

Question 28

The neighbour principle was established by the landmark case:

Answer 28

Donoghue vs stevenson

Question 29

three essential elements for a negligence claim to be successful

Answer 29

• duty of care
• breach of duty
• consequential damage

Question 30

Name 4 of the matters to be taken into account by the court in considering cases of professional negligence

Answer 30

• purpose for which statement was created
• relationship between the parties
• size of any class to which the recipient belonged
• state of knowledge of the maker
• whether the professional assumed responsibility