Tort

Question 1

DOC for omissions

Answer 1

None except: 1) statutory duty 2) contractual duty 3) D has sufficient control over C 4) D assumes responsibility for C 5) D creates the risk

Question 2

DOC for acts of third parties

Answer 2

None except: 1) A has assumed responsibility to protect B from danger 2) A has done something that prevents another from protecting B from that danger 3) A has a special level of control over that source of danger 4) A’s status creates an obligation to protect B from danger (Robinson)

Question 3

DOC for public bodies

Answer 3

Treated as private individuals. No DOC for omission based on statutory power or duty to act. No DOC if incompatible with the intentions of the statutory scheme for public body, considering policy matters, can only be held liable for operational matters

Question 4

Novel DOC: Caparo Test

Answer 4

IFF no precedent, develop incrementally. 1) harm reasonably foreseeable 2) proximity btwn C and D 3) fair just and reasonable

Question 5

DOC for ambulance

Answer 5

DOC for ambulance to respond in reasonable time to emergency call based on proximity

Question 6

Steps in tort claim

Answer 6

1) loss or damage 2) duty 3) breach 4) causation 5) remoteness 6) defences

Question 6

Steps to establish breach of duty

Answer 6

1) establish SOC 2) breach? (=did act fall below SOC)

Question 7

Nettleship v Weston

Answer 7

Learner driver judged by standard of ordinary driver

Question 8

Professional negligence (SOC): Bolam v Friern

Answer 8

SOC = an “ordinary reasonable man exercising and professing to have that special skill”

Means trainee solicitor SOC = SOC of person professing to be private solicitor

Question 9

Children SOC

Answer 9

whether reasonable and careful x-year old would have foreseen risk of injury

Question 10

Illness and disability SOC

Answer 10

Reasonably competent standard of non-disabled person (ie competent driver) unless sudden onset, where = reasonably competent driver unaware that he is suffering a condition impairing his ability to drive

Question 11

SOC = question of ___, Breach = question of ____

Answer 11

SOC = law (judge), Breach = fact (jury)

Question 12

Factors in determining breach

Answer 12

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 13

Breach: magnitude of harm (seriousness of injury)

Answer 13

If any injury may be serious, more care will be needed than if risk was of minor injury

Question 14

Breach: practicality of precautions

Answer 14

cost and practicality of avoiding risk v severity of risk

Question 15

Breach: benefit of D’s conduct (Compensation Act 2006)

Answer 15

if D takes risk aiming to protect life/property

Compensation Act 2006 - consider whether steps to meet SOC might 1) prevent a desirable activity from being undertaken or 2) discourage ppl from undertaking desirable activity

Question 16

Breach: benefit of D’s conduct (Social Action, Responsibility and Heroism Act 2015

Answer 16

When determining breach consider whether person acting for benefit of society, ie heroically and acting responsibly

Question 17

Breach: common practice

Answer 17

1. If was common practice in field
2. but court can say common practice itself was negligent if illogical

Question 18

Breach: ‘state of the art’ defence

Answer 18

Assess D’s actions against knowledge in profession/accepted practice at time of breach

if unforseeable risk no negligence

not expected to know all knowledge in field

Question 19

Breach: sport

Answer 19

Must be “reckless disregard” for C’s safety bc players will take risk in heat of moment

Question 20

Breach: burden of proof

Answer 20

Burden is on C to prove D breached DOC

Question 21

Breach: relevance of criminal prosecution

Answer 21

If D has been criminally prosecuted for act causing C’s injury then C can use conviction iff is evidence of careless conduct (ie dangerous driving)

Question 22

Breach: res ipsa loquitur

Answer 22

= “the facts speak for themselves,” in v small number of cases where only plausible explanation for C’s injuries = D’s negligence but cannot explain how accident occurred

Conditions = 1. thing causing damage under control of D 2) accident would not normally happen w/out negligence 3) cause of accident is unknown to C ie C has no direct evidence of D’s failure to take care