Principles of Tort: Negligence, Remedies and Defences

Question 1

What is the essence of negligence?

Answer 1

• the recognition of a duty of care owed by one person to another
• the breach of that duty
• the cause of damage by that breach which was reasonably foreseeable

Question 2

What is the primary aim of the tort of negligence?

Answer 2

To compensate for physical harm to person or property together with any consequential economic loss

Question 3

What is the case that sets out the duty of care which is owed in negligence?

Answer 3

Donoghue v Stevenson [1932]

Question 4

What is the duty of care test referred to as?

Answer 4

The neighbour test

Question 5

What is the duty of care?

Answer 5

To take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour

Question 6

Who is considered to be a ‘neighbour’?

Answer 6

Persons who are so closely and directly affected by the act that you ought reasonable to have them in contemplation as being so affected

Question 7

When there is no existing guidance case law what approach should be used?

Answer 7

The Caparo test

Question 8

What is the Caparo test?

Answer 8

A duty of care exists when:
1. the harm must be reasonably foreseeable;
2. the parties must be in a relationship of proximity; and
3. it must be fair, just and reasonable to impose liability

Question 9

When should the Caparo test not be used?

Answer 9

Where the facts of the case fall within an established category

Question 10

What is the standard of care in negligence?

Answer 10

It is objective and that of a reasonable person in the circumstances of the particular case

Question 11

When will there be a heightened standard of care?

Answer 11

Where a person is recognised as having a particular skill and is qualified in a professional field, for example a doctor or lawyer

Question 12

If it has been established that a duty of care exists, what needs to be shown in order for there to be liability in negligence?

Answer 12

The duty must be shown to have been breached and that breach caused loss and/or damage

Question 13

What is the test relating to causation?

Answer 13

The ‘but for’ test - if the harm would not have occurred but for the breach of duty, the breach caused the harm. If the harm would have occurred in any event, any breach by the defendant has not caused the harm

Question 14

What does the court take into consideration in relation to remoteness?

Answer 14

If damage is not foreseeable it is likely to be too remote and if damage is too remote then it is not likely to be foreseeable

Question 15

What duty does an employer have to their employee?

Answer 15

A basic primary duty which is to take reasonable care for the safety of all employees whilst acting in the course of their employment

Question 16

Where is the employers duty also reflected?

Answer 16

Health and Safety at work etc Act 1974

Question 17

How might the employers duty be discharged?

Answer 17

By carrying out appropriate risk assessments and taking action to address risks which are reasonable and proportionate

Question 18

Can employers be held liable for the negligence of employees or independent contractors?

Answer 18

Yes, through vicarious liability

Question 19

What is required to give rise to vicarious liability?

Answer 19

That there is a relationship between the wrongdoer and the purported employer which is capable of giving rise to vicarious liability.
That the scope of the employment duties is sufficiently connected with the wrongful act or omission

Question 20

What are the possible defences for negligence?

Answer 20

• consent
• contributory negligence
• importance of objective and necessity
• illegal conduct as a base for a claim

Question 21

When can consent be a defence?

Answer 21

If a claimant has voluntarily consented to run a particular risk they cannot sue should that risk materialise and they suffer an injury as a result

Question 22

When does the defence of consent not apply?

Answer 22

Where a dangerous situation has been created by the defendants’ own negligent act which has placed a person in peril and whom another person, a rescuer, acts to save or protect

Question 23

When does the defence of contributory negligence apply?

Answer 23

Where:
- the claimant has been at fault;
- the claimant’s fault has contributed to the infliction of their injuries; and also
- the claimant’s fault has contributed to the extent of their injuries

Question 24

What will the court consider in deciding whether there has been contributory negligence?

Answer 24

What standard of care might reasonably have been expected of the claimant in the particular circumstances to prevent foreseeable harm being caused to them

Question 25

What is the reduction for contributory negligence for failing to wear a seatbelt?

Answer 25

25% but only if the injury would have been prevented altogether by wearing the seat belt

Question 26

What is the purpose of a personal injury claim?

Answer 26

To seek compensation to, as far as possible, put the injured person back to the position they would have been in had the accident not occurred

Question 27

Damages must be…

Answer 27

fair, reasonable and proportionate

Question 28

What are the types of damages?

Answer 28

General damages and special damages

Question 29

What are general damages for?

Answer 29

To compensate the claimant for the impact of the injury on the claimant’s ability to enjoy life

Question 30

What comes under general damages?

Answer 30

• pain and suffering
• loss of amenity for the injury
• loss of congenial employment
• loss of holiday
• disadvantage on the labour market

Question 31

What do the Judicial College guidelines take into consideration to assist court in achieving consistency as to the appropriate level of award for damages?

Answer 31

• the severity of the injury
• the speed of recovery
• any complicating factors
• the impact on the claimant’s life

Question 32

When might a claim for loss of congenial employment arise?

Answer 32

When a claimant can no longer work in employment which gave them a particular source of satisfaction or status

Question 33

Where the claimant is likely to find it difficult to find fresh employment if they are thrown onto the job market what award may they claim?

Answer 33

a Smith v Manchester award