tort

Question 1

what is negligence?

Answer 1

the breach of a legal duty to take care by the defendant resulting in loss or damage to the claimant.

Question 2

what elements must be considered to establish a claim in negligence?

Answer 2

1. loss/damage
2. duty
3. breach
4. causation
5. remoteness
6. defences

Question 3

what is the neighbour principle?

Answer 3

you must take reasonable care to avoid acts or omissions which you can reasonably foresee for persons who are so closely and directly affected by the act you ought to have reasonably have them in contemplation.

Question 4

what is the three stage approach?

Answer 4

1. foreseeability of harm, an objective stage of what a reasonable person would be expected to foresee
2. there must be sufficient proximity
3. it must be fair, just and reasonable to impose a duty.

Question 5

what is standard of care set by?

Answer 5

the act, not the actor.

Question 6

what is the general rule for standard of care?

Answer 6

a defendant must behave as a reasonable person would in all the circumstances.

Question 7

what is the two stage approach for establishing breach of duty?

Answer 7

1. standard of care - a question of law
2. has the standard of care been breached? - a question of fact.

Question 8

what are the relevant factors to breach?

Answer 8

1. likelihood of harm
2. magnitude of harm
3. practicality of precautions
4. benefit of d’s conduct
5. common practice
6. state of the art defence
7. sport.

Question 9

who has the burden to prove the beach of duty of care?

Answer 9

the burden is on the claimant to prove the defendant breached the duty of care on the balance of probabilities.

Question 10

what conditions must be satisfied in order for the res ipsa loquitur maxim?

Answer 10

1. the thing causing the damage was under the control of the defendant or someone they are responsible for
2. the accident would not normally happen without negligence
3. the cause of the accident is unknown to the claimant e.g. the claimant has no direct evidence of the defendant’s failure to take care.

Question 11

what is the starting point for establishing factual causation?

Answer 11

the ‘but for’ test

Question 12

what is apportionment?

Answer 12

a calculation to apply once factual causation has been established.

Question 13

why would we use apportionment?

Answer 13

where there are multiple tortious factors which are known to have caused part of the loss, the courts apportion liability.

Question 14

what is the exception to apportionment?

Answer 14

mesothelioma cases - defendants are jointly and severally liable.

Question 15

what is the effect of a novus actus interveniens?

Answer 15

the defendant is liable for the losses up until the novus actus.