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Law > Negligence > Flashcards

Negligence Flashcards

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1
Q

Define tort

A

A breach of a legal duty

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2
Q

Does a contractual relationship need to be established for a claim in tort to be successful?

A

No

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3
Q

What are the claimant’s options if a contract does exist and a tort has been committed?

A

The claimant may choose the remedy most appropriate of these two options:

  1. Sue for damages under breach of contract
  2. Sue for damages under tort
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4
Q

What are the damages available under breach of contract?

A

The amount of damages awarded is intended to put the claimant back in the position they would have been in had the contract been properly performed

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5
Q

What are the damages available in tort?

A

The amount of damages is intended to put the claimant in the position he would have been in had the tortious act never taken place

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6
Q

What is the limitation period in contract?

A

Six years from the breach of contract

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7
Q

What is the limitation period in tort?

A

Generally six years, but three years for personal injury

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8
Q

What conditions must be satisfied in order to be successful in an action for tort?

A
  1. There must be an act or omission by the defendant
  2. The act or omission must have directly caused damage or injury to the claimant
  3. The courts must be able to establish a legal liability as a result of the damage
  4. The damage is not too remote: it is a direct consequence of something the defendant did or didn’t do
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9
Q

Define negligence

A

The breach of a legal duty to take care, which results in damage to another

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10
Q

What conditions must be satisfied in order for an action in negligence to succeed?

A

The claimant must prove that, on a balance of probabilities:

  1. That a duty of care was owed to him by the defendant
  2. The defendant breached that duty
  3. As a consequence of that breach, damage or loss has been suffered; causal link
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11
Q

What did the Donoghue v Stevenson 1932 case establish?

A

That a duty of care may be owed to a person even where no contractual relationship exists when physical damage is suffered

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12
Q

What is the neighbour principle?

A

Duty of care is owed to your neighbour, who is a person that the claimant would reasonably foresee as affected by their actions.

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13
Q

What did the Hedley Byrne & Co Ltd v Heller & Partners Ltd 1963 case establish?

A

That a claim for financial loss suffered could be made under duty of care if a special relationship existed between the claimant and defendant

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14
Q

What did the case of The Nicholas H (Marc Rich & Co v Bishops Rock Marine) 1995 establish?

A

Four tests that should be followed in determining whether a duty of care exists

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15
Q

What are the four tests that should be followed in determining whether a duty of care exists?

A
  1. Reasonably foreseeable
  2. Public policy
  3. Sufficient proximity/neighbourhood principle
  4. Fair, just, and reasonable
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16
Q

If a faulty iPad causes a fire that results in smoke inhalation and damage to furnishings, is it the defect or the resultant damage that has given rise to the liability?

A

The resultant damage, so he is not entitled to the cost of the iPad.

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17
Q

Is establishing that there has been a breach of duty of care a question of fact or law?

A

A question of fact

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18
Q

Define res ipsa loquitor

A

When the facts of the case speak for themselves. In these situations, it is felt that the fact there is a harm shows there must have been a breach.

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19
Q

Is the standard of care a question of fact or law?

A

Question of law

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20
Q

Define the man on the Clapham omnibus

A

The degree of care which a reasonable man would have taken in the circumstances

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21
Q

Is the man on the Clapham omnibus expected to be skilled?

A

Not usually. However, if he acts or purports to act in a professional capacity he must show the care and skill of someone of that profession.

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22
Q

What principles are taken into account when establishing whether a reasonable standard of care has been taken?

A
  1. If have a particular skill, reasonable man with that skill
  2. Level of skill unimportant
  3. Judged against current practice at the time
  4. Body of opinion
  5. Courts will consider advantage and risk
  6. In an emergency, lower care may be accepted
  7. Higher care required for more vulnerable claimant
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23
Q

What is the likelihood of recovering pure financial loss?

A

Rare

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24
Q

Which losses are normally recoverable?

A
  1. Loss as a result of personal injury
  2. Damage to property
  3. Financial loss directly connected to personal injury
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25
Q

What are the three elements of the tort of negligence?

A
  1. Duty of care
  2. Breach of duty of care
  3. Resultant loss
26
Q

Is the intention of the defendant relevant to a claim for negligence?

A

No

27
Q

In tort of negligence, is the claimant required to mitigate their loss?

A

No

28
Q

Is there a difference between liability arising from negligent misstatement and liability arising from negligent acts?

A

Not in practice

29
Q

How must a claimant demonstrate that he has suffered loss or damage as a direct consequence of the breach?

A
  1. Harm caused to claimant was caused by the defendant’s breach
  2. Courts use ‘but for’ test
  3. No claim if it is too remote
30
Q

How is the special relationship established under Hedley Byrne & Co Ltd v Heller & Partners Ltd 1963 defined?

A
  1. Defendant in the business of giving professional advice
  2. Advice given in business context
  3. The defendant knows, or should know, that the claimant would rely on it
31
Q

Is there a duty of care where there is no special relationship?

A

No

32
Q

Can professional advisers be liable in respect of negligent advice in contract?

A

Yes

33
Q

Can professional advisers be liable in respect of negligent advice in tort?

A

Yes

34
Q

In Hedley Byrne v Heller, under what basis did the House of Lords hold that a banker would owe a duty of care on a reference for a client given voluntarily without consideration to a third party?

A

That a duty is owed to a person the defendant knew or ought to have known would rely on the statement

35
Q

What is the principle remedy in any case involving negligence?

A

An award of reasonably foreseeable damages

36
Q

What are the defences to a charge of negligence?

A
  1. Contributory negligence
  2. Volenti non fit injuria
  3. Exclusion clauses
37
Q

Define contributory negligence

A
  1. Partial defence

2. If the claimant is partly responsible for damages through their own negligence

38
Q

Define volenti non fit injuria

A
  1. Complete defence
  2. Applies where the claimant has taken action to show they consented to the risk of loss or damage due to the defendant’s actions
39
Q

Define exclusion clause

A

A provision within a contract that seeks to exclude or limit liability for negligence

40
Q

How is compensation awarded in the tort of negligence when the claimant is partly responsible for damages?

A

The compensation awarded by the court will be reduced to take account of the claimant’s share of the injuries

41
Q

What should the claimant claim when they cannot show precisely how an accident occurred in relation to damages received through negligence?

A

He may assert res ipsa loquitur as there would be no other way that the injury could have happened and so negligence is presumed.

42
Q

Define vicarious liability

A

Liability imposed on a party for torts committed by another

43
Q

In cases of employment-based vicarious liability, who can the claimant sue?

A

The employer, the employee, or both

44
Q

Under what condition is an employer liable for torts committed by an employee?

A

When the tort is committed by an employee in the course of his employment

45
Q

In respect of a successful action in the tort of negligence, is the standard of proof the balance of probabilities?

A

Yes

46
Q

Does the claimant or the court decide whether the damage was remote?

A

The court must decide the remoteness of the damage after the claimant has proven that the defendant owed and breached a duty of care and that they suffered damage as a result of that breach

47
Q

What was established by the Caparo Industries Plc v Dickman and Others 1990 case?

A

The auditor’s duty was owed to the body of shareholders as a whole and did not extend to potential investors nor to existing shareholders increasing their stakes.

48
Q

Is a liability limitation agreement between a company and its auditor limiting potential liability for negligence in the course of auditing accounts valid?

A

It may be

49
Q

Is a provision, other than in a liability limitation agreement, that excludes an auditor from potential liability in tort enforceable?

A

No. Such a provision is void under the Companies Act

50
Q

Do professional advisers making a statement in a professional capacity owe a duty of care in addition to their contractual commitments?

A

Yes if it is likely that others will rely on what they’ve said

51
Q

Are professional advisers liable for advice given informally?

A

No

52
Q

Is a circumstance where a professional adviser prepares a statement for general circulation, which could foreseeably be relied upon by persons unknown to the professional for a variety of different purposes, sufficient to give rise to duty of care?

A

No

53
Q

Is a circumstance where a professional adviser prepares information in the knowledge that a particular person was contemplating a transaction and would rely on the information in deciding whether or not to proceed with the transaction sufficient to give rise to duty of care?

A

Yes

54
Q

How might an auditor commit an offence under the Companies Act 2006?

A

If they recklessly cause an auditor’s report to contain any matter that is misleading or false to a material extent

55
Q

According to the Unfair Contract Terms Act 1977, can businesses exclude liability for any consequences of any negligent act on their part?

A

Yes with exceptions including personal injury

56
Q

What are the sorts of relationships that the Unfair Contract Terms Act 1977 pertains to?

A
  1. Business to consumer

2. Business to business

57
Q

With regard to damages for negligence, does the manner in which the loss was suffered need to be reasonably foreseeable so that the claimant can recover damages?

A

No

58
Q

With regard to damages for negligence, does the extent of the loss need to be reasonably foreseeable so that the claimant can recover damages?

A

No

59
Q

With regard to damages for negligence, what needs to be reasonably foreseeable so that the claimant can recover damages?

A

The type of damage suffered; not the way it came about or the extent of it.

60
Q

Can employers personally mitigate vicarious liability?

A

No

61
Q

Does a duty of care in tort follow a contractual duty of care?

A

Not necessarily. This is dependant on the facts and the relationship between the parties.

62
Q

Are sophisticated investors more or less likely to satisfy the court that an auditor owes them a duty of care?

A

Less likely

Law (6 decks)

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