TB1

Question 1

(Duty of care) What are the elements of a negligence claim?

Answer 1

A duty of care
Breach of duty
Has there been damage?
Was the damage caused by the breach?

Question 2

(Duty of care) Who is the burden of proof on in negligence?

Answer 2

The claimant

Question 3

(Duty of care) What are the ways of establishing a duty of care?

Answer 3

An already established duty e.g road users, doctors to patients
Duty developed by case law

Question 4

(Duty of care) Who is your neighbour?

Answer 4

Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question

Question 5

(Duty of care) What are the elements of the Caparo test?

Answer 5

Foreseeability of damage
Proximity of relationship
Fair, just and reasonable

Question 6

(Duty of care) Public bodies include?

Answer 6

The Central Government e.g the Home Office
Local authorities
Schools
Police
Fire authorities
Quangos e.g Thames Water, Milk Marketing Board etc

Question 7

(Duty of care) Do fire authorities owe a duty of care?

Answer 7

A duty is owed to the public
No duty is owed to private individuals
May be liable if they worsen a situation

Question 8

(Duty of care) Do ambulances owe a duty of care?

Answer 8

Yes - they are an extension of the NHS which owes a duty of care

Question 9

(Duty of care) Do coastguards owe a duty of care?

Answer 9

Have no duty to respond

If they respond, they owe a duty to not make the situation any worse

Question 10

(Duty of care) Do the police owe a duty of care?

Answer 10

Depends on the circumstances
Can be liable in negligence when they directly injure someone
If the harm is caused by investigation of a crime or due to resource allocation, may not be liable

Question 11

(Breach of duty) The standard of care test is objective - in what situations do the courts use a subjective test?

Answer 11

For children
For emergency situations
When assessing a defendants skill

Question 12

(Breach of duty) What are the 4 factors to consider when assessing breach?

Answer 12

Probability of damage
Magnitude of harm
Practicality and cost
Social utility and conduct

Question 13

(Breach of duty) What does the Bolam test mean?

Answer 13

The Court won’t expect the defendant to anticipate future development, the defendant will be judged on what was known at the time

Question 14

(Causation in fact) What is the test for causation in fact?

Answer 14

But for test

But for the defendant’s actions, would I have suffered the damage?

Question 15

(Causation in fact) In what circumstances is the but for test hard to apply?

Answer 15

Multiple defendants
Multiple causes of action
Loss of chance

Question 16

(Causation in fact) What are the two types of liability when you have multiple defendants?

Answer 16

Several liability - more than one party acts independently to cause the same damage - each defendant is separately liable for the damage
Joint and several liability - more than one party acts jointly to cause the same damage - any or all defendants can be sued, each is separately liable for the whole damage

Question 17

(Causation in law) What is causation in law also known as?

Answer 17

Remoteness of damage

Is the damage too remote from the breach?

Question 18

(Causation in law) What is the test for causation in law?

Answer 18

Reasonable foreseeability test

Question 19

(Novus actus interveniens) What are the 3 categories of intervening acts?

Answer 19

Actions by the claimant
Natural events
Actions by a third party

Question 20

(NAI) When will an event not be an NAI and when will it be an NAI?

Answer 20

If the event was foreseeable then it won’t be an NAI

If the event wasn’t foreseeable then it will be an NAI

Question 21

(Defences) What are the 3 defences?

Answer 21

Contributory negligence
Ex turpi
Volenti

Question 22

(Defences) What is contributory negligence?

Answer 22

Both C and D are partly responsible
Found in the Law Reform (Contributory Negligence) Act 1945
D must prove that C failed to take reasonable care for their safety
Compensation is split accordingly, decided by the court

Question 23

(Defences) What are the 3 exceptions to contributory negligence?

Answer 23

Children - depends on age
When in perceived danger
Employees - breach of statutory duty

Question 24

(Defences) What is ex turpi?

Answer 24

Complete defence - if successful, claimant receives no compensation
Claimant committed a criminal act which is the cause of their case

Question 25

(Defences) What are the wide and narrow rules in ex turpi?

Answer 25

Wide rule - you cannot claim for injury as a result of your own criminal act or a joint criminal enterprise
Narrow rule - damages cannot be recovered if it is the result of a criminally imposed sentence

Question 26

(Defences) What is volenti?

Answer 26

Complete defence - if successful, claimant will receive no compensation
Claimant must have consented to the harm / negligence

Question 27

(Defences) When is volenti not applicable?

Answer 27

In cases of suicide

Question 28

(Remedies) What are judicial and extra-judicial remedies?

Answer 28

Judicial remedies - damages that the courts will provide for a wronged party
Extra-judicial remedies - when a person can lawfully avoid a situation themselves without court

Question 29

(Remedies) What are the 4 main types of damages?

Answer 29

Nominal damages
Contemptuous damages
Punitive damages
Compensatory damages

Question 30

(Remedies) What are contemptuous damages?

Answer 30

Damages awarded where there is a desire to indicate that the claimant was successful but that the court feels that the action should have never been brought
Claimant will often receive the smallest coin in circulation as reward

Question 31

(Remedies) What are compensatory damages?

Answer 31

Aim to restore what the claimant has lost

Also includes aggravated damages

Question 32

(Remedies) What are nominal damages?

Answer 32

The claimant will be held to have his rights violated but not actually suffered any loss
Awarded nominal damages (normally £2)

Question 33

(Remedies) What are punitive damages?

Answer 33

Imposed over and above any compensatory damages to deter the defendant and others

Question 34

(Remedies) What are pecuniary losses?

Answer 34

Losses that are financial and can easily be given a value

Examples include loss of earnings, or medical expenses

Question 35

(Remedies) What are non-pecuniary losses?

Answer 35

Losses that cannot be given a simple financial value

Examples include pain and suffering, or loss of amenity

Question 36

(Remedies) What are the 4 types of award?

Answer 36

Lump sum award
Structured settlement
Periodical payments
Provisional damages

Question 37

(Remedies) What is a lump sum award?

Answer 37

Paid in full and final

There is no sum to manage and the claimant has full control of their funds

Question 38

(Remedies) What is a structured settlement?

Answer 38

Insurer buys an annuity which pays a certain amount each month or year

Question 39

(Remedies) What are periodical payments?

Answer 39

Court can order that payments are regularly made by the defendant or insurer

Question 40

(Remedies) What are provisional damages?

Answer 40

If deterioration occurs in future then the claimant can claim
Only able to claim once