Negligence

Question 1

What does the claimant need to prove to claim negligence?

Answer 1

• duty of care owed by defendant
• breach of duty
• breach caused the damage suffered by claimant

Question 2

What is tort?

Answer 2

Wrongful act or infringement of right that is not under contract leading to legal liability

Question 3

Who is a duty of care owed to?

Answer 3

a ‘neighbour’ - i.e. somebody not under contract but someone directly affected by the act

Question 4

What are the 4 tests that determine whether a duty of care exists?

Answer 4

• damage reasonably foreseeable by defendant at time?
• sufficient proximity (closeness) between the parties?
• is it fair, just and reasonable to impose a duty of care?
• is there a matter of public policy which exists?

Question 5

What is the principle of ‘res ipsa loquitor’?

Answer 5

• the fact that there is harm shows there was a breach

- ‘this injury is a fact that a breach occurred’

Question 6

How is a defendant judged as a ‘reasonable man’?

Answer 6

• if they have a skill, the reasonable man has that skill
• lack of skill irrelevant
• judged on knowledge at the time (hindsight irrelevant)
• courts will consider advantage and risk
• emergency taken in to consideration
• higher care for more vulnerable claimant

Question 7

Loss caused by a breach

Answer 7

• claimant has to prove loss or damage was a direct consequence of the breach
• caused by something or someone else then no liability to defendant
• if loss would have been suffered regardless then no claim

Question 8

Can a loss be claimed on the basis of professional advice?

Answer 8

Can claim purely for financial losses if there is a ‘special relationship’ between parties

• defendant is in business of giving professional advice
• advice given in business context
• knows, or should know, claimant would rely on it

Question 9

What is the principal remedy in any case involving negligence?

Answer 9

Damages to put claimant in position they would be in if negligence hadn’t happened

Question 10

What are the 3 main defences to a charge of negligence?

Answer 10

• contributory negligence
• volenti non fit injura
• exclusion clauses

Question 11

Define contributory negligence

Answer 11

• claimant partly responsible for losses suffered

- damages reduced

Question 12

Describe volenti non fit injura

Answer 12

• claimant freely consented to risk or harm

- no damages awarded

Question 13

Describe exclusion clauses

Answer 13

• can limit/exclude liability

- must pass legal tests for exclusion clauses

Question 14

What is vicarious liability?

Answer 14

Where one person can be liable for another’s actions

Question 15

What are examples of vicarious liability?

Answer 15

• employer for employee acting in course of business
• principal for agent acting within limits of his authority
• partnership in partners acting in course of business