Session 1 - general negligence sequence

Question 1

In a negligence claim, what does the claimant need to prove?

Answer 1

• duty
• breach
• causation
• loss or damage
• remoteness

Question 2

In a negligence claim, what does the Defendant need to prove?

Answer 2

Defence

Question 3

Types of loss in tort law

Answer 3

• physical/bodily injury
• psychiatric harm
• property damage
• consequential economic loss
• pure economic loss

Question 4

what is consequential economic loss

Answer 4

economic loss which results from personal injury / damage to property

Question 5

What is the 3 stage CAPARO test/approach

Answer 5

1. foreseeability of harm
2. proximity (between D&C)
3. It must be fair, just and reasonable to impose a duty

Question 6

What are the policy considerations that courts consider regarding what is ‘just, fair and reasonable’?

Answer 6

1. floodgates
2. insurance
3. crushing liability (concern to finding a party liable where the result would be that the party would need to pay damages out of all proportion to the
   wrong committed.)
4. deterrence
5. maintenance of high standards
6. defensive practices

Question 7

How to determine whether a duty of care is owed

Answer 7

if YES: apply the precedent - is there a precedent making clear whether or not a duty is owed?

if NO: apply Caparo test: foreseeability, proximity, fair just and reasonable

Question 8

The foreseeability of harm is very often part of the test for a duty of care. It is sometimes said that the test of foreseeability is ‘objective’. This means we ask:

A. What a reasonable person could have been expected to foresee.

B. What the defendant foresaw

C. What a reasonable person would consider appropriate circumstances to impose a duty.

D. What the claimant foresaw

Answer 8

A

Question 9

There is no duty to avoid omissions (failure to fulfil a legal obligation) EXCEPT….

Answer 9

• Where there is a statutory duty
• Where there is contractual duty
• Where the defendant has sufficient control
• Where the defendant assumes responsibility
• Where the defendant creates the risk through an omission

Question 10

General rule in tort law - liability

Answer 10

no liability is imposed on a mere failure to act

Question 11

Which of the following has a positive duty to respond to emergency calls?

A. The ambulance service

B. The police

C. The fire service

Answer 11

A
answering of a call creates sufficient proximity between caller and service

Question 12

General rule of liability for acts of third parties

Answer 12

theres is no duty owed to a third party from causing harm to the claimant

Question 13

exceptions to the general rule of acts of third parties

Answer 13

• There is sufficient proximity between D and C
• There is sufficient proximity between D and third party
• D created danger (eg cleaner failed to lock door when tp attacked)
• The risk is on D’s premises

Question 14

A dogwalker falls into a river trying to rescue their dog. A runner passing by tries to help the dogwalker out of the river but, after a short while, gives up and leaves the dogwalker in the river. The dogwalker is eventually rescued but suffers hypothermia from being in the river so long.
Which of the following statements is most accurate regarding whether the runner owed a duty of care to the dogwalker?

a) The runner will not owe a duty of care to the dogwalker because the dogwalker did not act reasonably by trying to rescue the dog from the river.

b) The runner might owe a duty of care to the dogwalker because a reasonable passer-by would have helped the dogwalker.

c) The runner might owe a duty of care to the dogwalker because the runner assumed responsibility for the dogwalker by trying to help them out of the river.

d) The runner will not owe a duty of care to the dogwalker because the runner did not know the dogwalker as they were just passing by.

e) The runner will not owe a duty of care to the dogwalker because there is no legal obligation on a person to rescue another.

Answer 14

C - because they assumed so they should’ve stayed with them

Question 15

two stages of establishing breach of duty

Answer 15

1. standard of care (to be expected from D)
2. breach of duty (fallen below standard of care)

Question 16

Standard of care of the reasonable person/standard

Answer 16

• reasonable person - objective test (eg for children, what would a reasonable 10 y/o do)
• the act, not the actor

Question 17

disability and standard of care

Answer 17

reasonable test applies if at the time of the offence disabled person was not aware of their suffering from illness of disability

Question 17

Factors relevant to breach

Answer 17

• likelihood of harm
• magnitude of harm
• practicality of precautions
• benefit of D’s conduct
• common practice
• ‘state of art’ defence

Question 18

Meaning of Bolam test user ‘usual or common practice’

Answer 18

a doctor is not guilty if negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular part

Question 19

meaning ‘state of art’ defence

Answer 19

court looks at knowledge of offence at the time of the alleged breach

Question 20

medical professionals’ obligation to advise in relation to risks

Answer 20

they are under an obligation to take reasonable care to ensure that the patient is aware of any material risks involved in any treatment

Question 21

Once duty of breach is established, what is the next issue to be proven?

Answer 21

Causation

Question 22

types of causation

Answer 22

• factual causation
• legal causation

Question 23

what is factual causation?

Answer 23

deals with establishing the link between the breach and the damage/loss

where there is more than one possible cause of the loss

Question 24

what is legal causation?

Answer 24

involves considering whether there are any grounds upon which the link should be regarded as having been broken

Question 25

What test is linked with legal and factual causation?

Answer 25

‘but for test’

Question 26

what is the ‘but for’ test?

Answer 26

‘but for’ the negligent act/omission, would C have suffered the loss? if NOT then = factual causation

Question 27

is factual causation established if the tortious act/ omission materially increased the risk of the injury?

Answer 27

No

Question 28

at what rate does the ‘but for’ test fail?

Answer 28

if there is a 33% chance it cause loss/ it HAS to be 50%

Question 29

what test do the courts apply for cases like medical negligence? and what does it mean

Answer 29

material contribution

Question 30

When may factual causation be satisfied?

Answer 30

if the causation caused a materially increased risk of C’s losses

Question 31

What was held in McGhee?

Answer 31

• the tortious and non-tortious dust DID NOT act together to make loss – dermatitis could’ve been causes by either. There was a greater chance that it was the tortious dust and material contribution test failed because the tortious dust might have made no contribution to C’s loss.

o However, factual causation was established from the basis that D’s breach materially increased the risk of C’s loss => single agency case because they knew that the dust (single agent) caused C’s loss. They just didn’t know if it was the tortious dust or the non-tortious dust

Question 32

What are the 3 types of intervening to nous actus events?

Answer 32

• Acts of God or natural events
  acts will break the chain of causation if they occur AFTER the breach
• Acts of third parties
  if they occur after the breach they are highly unforeseeable
• Acts of the claimant
  can break chain of causation if the act occurs after the breach and the act was highly unreasonable

Question 33

What is the meaning of remoteness

Answer 33

• if the type of damage suffered reasonably foreseeable - if not then courts ill define damage more broadly eg personal injury rather than broken leg

Question 34

Key defences Defendant uses in a negligence claim

Answer 34

1. illegality
2. consent (volenti)
3. contributory negligence

Question 35

meaning of illegality as a defence

Answer 35

if D argues illegality and succeeds, then C gets nothing
2 steps:
1. has C committed an illegal act?
2. test in Patel v Mirza - whether public interest would be harmed

Question 36

meaning of consent as a defence

Answer 36

D must show that C:
- had capacity to give valid consent to the risks
- had full knowledge of the nature of risks
- agreed to the risk of injury
- agreed voluntarily

Question 37

meaning of Contributory Negligence as a defence

Answer 37

Claimant failed to take reasonable steps for their own safety
+
The failure contributed to the claimant’s damage
=
if established - % deduction to damages

Question 37

Example of contributory negligence

Answer 37

if C wasn’t wearing a helmet when cycling, it would be contributory negligence because if they wore helmet then they would have reduced injury or fully avoided it

Question 38

Types of damages in negligence claim

Answer 38

1. special damages
2. general damages

Question 39

What are special damages

Answer 39

• cover specifically provable and quantifiable financial loss
• loss of earnings
• medical injuries

Question 40

What are general damages

Answer 40

• cover future financial losses, which cannot be proven
• any future loss of earnings
• any money that would be spent on. medical treatments

Question 41

A barrister asks their friend if they want to go out in the barrister’s boat during a storm. The friend agrees to the trip. Both the barrister and their friend are experienced sailors. Due to the barrister negligently sailing the boat in the storm, the boat capsizes and the friend drowns.
Which one of the following statements best describes the position in relation to defences in the tort of negligence?

a. It is unlikely that the barrister can rely on the defence of consent because they did not obtain an express agreement to the risk of injury from the friend.

b. The barrister can rely on the defence of consent because the friend had full knowledge of the nature and extent of the risks of sailing a boat in a storm and they voluntarily agreed to the risk of injury. The friend’s estate’s damages would be reduced.

c. It is unlikely that the barrister can rely on the defence of consent because the friend was not sailing the boat and so did not have full knowledge of the nature and extent of the risks.

d. It is unlikely that the barrister can rely on the defence of consent because the friend would have felt obliged to agree to the trip and so they did not voluntarily agree to the risk of injury.

e. The barrister can rely on the defence of consent because the friend had full knowledge of the nature and extent of the risks of sailing a boat in a storm and they voluntarily agreed to the risk of injury. The friend’s estate’s claim would be negated.

Answer 41

E

Question 42

A passenger is travelling on a bus when the driver negligently crashes the bus. The passenger sustains an injury to their shoulder and decides to get a taxi to go to hospital. The taxi driver crashes the taxi less than a mile from the bus crash. The passenger is attended by paramedics who take them to hospital where an x-ray shows multiple fractures in their shoulder. It is impossible to say which crash caused the injuries, but it is very likely both crashes made some contribution.
Which of the following statements best describes the passenger’s legal position in the tort of negligence?

a. The passenger should bring a claim against the bus company. It is likely that factual causation will be hard to establish in relation to the taxi driver.

b. The passenger is unlikely to succeed in a claim against either the bus company or the taxi driver. The “but for” test cannot be satisfied in relation to either defendant.

c. The passenger should bring a claim against the bus company and the taxi driver. Both defendants are likely to have materially contributed to their injuries,

d. The passenger should bring a claim against the bus company and the taxi driver because both defendants are likely to have materially increased the risk of the injuries.

e. The passenger should bring a claim against the bus company and the taxi driver. They will be able to claim damages from both defendants, and therefore double their compensation.

Answer 42

C