Tort Law Flashcards
1
Q
Define the term ‘tort’ in the context of civil law.
A
A tort refers to a legal wrong that involves the infringement of a legal right or breach of a legal duty, giving rise to a claim in civil courts.
2
Q
Describe the roles of the claimant and defendant in a tort case.
A
The claimant is the person bringing the case against another, while the defendant is the person against whom the case is brought.
3
Q
Define negligence in the context of common law.
A
Negligence is a common law tort, meaning it is governed by court decisions and case law rather than being defined in an Act of Parliament.
4
Q
Describe the first essential element a claimant must prove in a negligence case.
A
The claimant must prove that the defendant owed them a legal duty of care.
5
Q
Describe the concept of novel duty situations in tort law.
A
Novel duty situations refer to new or unique circumstances that arise in court cases where the existence of a duty of care is being determined for the first time. These situations are not covered by established duties and require courts to assess whether a particular relationship or set of facts warrants a duty of care.
6
Q
How do courts determine the imposition of a duty of care in novel situations?
A
Courts apply a modern test established in the case of Caparo to determine whether a duty of care should be imposed in novel situations. This involves evaluating the relationship between the parties, the foreseeability of harm, and whether it is fair, just, and reasonable to impose a duty.
7
Q
Describe the Caparo test and its significance in determining duty of care.
A
The Caparo test is a legal standard established in the case of Caparo Industries plc v Dickman, which is used to determine when a duty of care is owed in novel situations. It redefined the neighbour principle and assesses whether a duty of care exists based on foreseeability, proximity, and whether it is fair, just, and reasonable to impose such a duty.
8
Q
How did the case of Caparo Industries plc v Dickman illustrate negligence in financial reporting?
A
In the case of Caparo Industries plc v Dickman, the defendant auditors were negligent in preparing accounts that significantly overvalued a company. The claimant relied on these inflated accounts to purchase shares, resulting in financial loss when the true value of the company was revealed. This case highlighted the importance of accurate financial reporting and the potential for economic loss due to negligence.
9
Q
Describe the concept of proximity in the context of the Caparo test.
A
Proximity refers to the relationship between the claimant and the defendant, which must be sufficiently close for a duty of care to be established. In the Caparo case, the claim for damages failed due to a lack of proximity.
10
Q
How does lack of proximity affect the duty of care in tort cases?
A
Lack of proximity may limit the duty of care owed in certain cases, such as omissions, pure economic loss, and pure psychiatric harm, indicating that not all relationships warrant a duty of care.
11
Q
Describe the distinction between established duty situations and novel duty situations in negligence law.
A
Established duty situations, such as those involving road users, do not require further analysis under the Caparo test, while novel duty situations necessitate applying the Caparo test to determine if a duty of care exists.
12
Q
How is a duty of care typically established in cases of negligence?
A
A duty of care is usually owed when one individual’s positive act of wrongdoing causes foreseeable physical injury to another person or physical damage to property.
13
Q
Describe the general rule regarding liability for omissions in tort law.
A
In general, there is no duty to act positively for the benefit of others, meaning individuals are not liable for failing to intervene in situations affecting others.
14
Q
How does the case of East Suffolk Rivers Catchment Board v Kent illustrate the duty not to make a situation worse?
A
In this case, the defendant had no duty to repair a breached sea wall but chose to intervene. The House of Lords ruled that there was no liability for the delay in repair, emphasizing that if there is no duty to act, intervening does not create liability for worsening the situation.
15
Q
Describe the duty of care in the context of negligence.
A
The duty of care in negligence refers to the legal obligation one person has to avoid causing harm to another, particularly when there is a relationship of control or supervision, such as that between an instructor and a learner driver or a teacher and a pupil.
16
Q
How does the case of Home Office v Dorset Yacht Co Ltd illustrate the duty of care?
A
In Home Office v Dorset Yacht Co Ltd, the case illustrates the duty of care as the officers in charge of young offenders failed to supervise them, leading to the boys escaping and causing damage to the claimant’s yacht, demonstrating negligence in their duty to prevent harm.
17
Q
Describe the process to determine liability in negligence according to the flowchart.
A
The process involves considering if the defendant owed a duty of care to the claimant, checking if there is an established duty of care, determining if the situation is novel, assessing if the test is satisfied, evaluating if there was a breach of duty, examining causation, and finally considering any defenses.
18
Q
How does the flowchart address the concept of duty of care in negligence cases?
A
The flowchart first checks if the defendant owed a duty of care to the claimant and if there is an established duty of care. If not, it assesses whether the situation is novel and applies the relevant test to determine if a duty of care exists.
19
Q
Describe the requirements for a defendant to be liable in the tort of negligence.
A
A defendant must owe a duty of care to the claimant and be in breach of that duty, meaning they failed to meet the legal standard required.
20
Q
How is a breach of duty determined in negligence cases?
A
The determination of a breach of duty is a question of fact for the judge, involving a two-stage test to assess whether the defendant failed to meet the required standard.
21
Q
Define the test for determining negligence in breach of duty.
A
The test for determining negligence in breach of duty is objective and does not consider the personal attributes of the defendant. It assesses what a reasonable person would have foreseen in the particular circumstances, rather than what the defendant personally foresaw.
22
Q
Describe how unexpected disabilities affect the standard of care in negligence cases.
A
In negligence cases, if a defendant suffers from an unexpected disability, such as a sudden impairment of consciousness or a heart attack, they are not considered in breach of duty if they meet the standard of a reasonable person who is unaware of their condition.
23
Q
Describe the significance of the Bolitho v City and Hackney Health Authority case in tort law.
A
The Bolitho case established that a defendant’s professional opinion must withstand logical analysis; if it does not, the court can find the defendant in breach of duty, even if there is some opinion supporting the defendant’s actions.
24
Q
How does the Nettleship v Weston case illustrate the concept of special standards for under-skilled defendants?
A
In Nettleship v Weston, the case demonstrates that even an experienced driver can be held to a standard of care that considers the skill level of the person they are instructing, highlighting that the standard of care may vary based on the defendant’s skill.
25
Describe the expectations for a defendant who presents themselves as a specialist in a professional field.
A defendant who presents themselves as a specialist, such as a consultant surgeon, is expected to meet a higher standard of care due to their claimed expertise. They must demonstrate the necessary professional skill and meet the standard required for the specific task they undertake.
26
How does the standard of care differ for individuals without professed special skills?
Individuals who do not claim to have a particular professional skill, like in the case of Wells v Cooper, are not held to a higher professional standard. However, they must still meet the minimum standard required for the task they undertake, and failing to possess necessary special skills for a task can be considered negligent.
27
Describe the two elements involved in assessing the magnitude of risk in tort law.
The two elements are: 1) the likelihood that the defendant’s actions could cause an injury, and 2) the seriousness of the injury if it were to occur.
28
How does the likelihood of injury affect the precautions a defendant must take in tort cases?
The greater the chances of the defendant’s activity causing injury to the claimant, the more precautions the defendant must take to prevent such injury.
29
Describe how courts assess the reasonableness of a defendant's precautions in negligence cases.
Courts evaluate whether a defendant has taken all reasonable measures to prevent injury by considering the practical steps that could have been taken, the cost of those measures, and the extent to which the risk of injury could have been reduced. If low-cost measures could significantly lower the risk, failing to implement them may be deemed unreasonable.
30
Define the relationship between cost and the practicability of precautions in negligence law.
In negligence law, the relationship between cost and practicability of precautions is crucial. If a defendant can reduce a significant risk of injury at a low cost, failing to do so is unreasonable. Conversely, if the cost is high and the risk reduction minimal, it may be reasonable for the defendant to refrain from taking action, unless the risk of injury is substantial.
31
Define the term 'impecuniosity' in the context of tort law.
Impecuniosity refers to a lack of financial resources, and in tort law, it is not considered a valid defense for a defendant's actions.
32
Describe how the purpose of a defendant's activity influences liability in negligence cases.
The purpose of a defendant's activity is a significant factor in determining liability; if the activity serves the public interest, the defendant is less likely to be held liable for negligence.
33
Describe the burden of proof in a negligence claim.
In a negligence claim, the burden of proving that the defendant has breached the duty of care lies with the claimant, who must establish their case 'on a balance of probabilities', meaning it is more likely than not that the defendant was in breach.
34
How can a claimant typically prove a breach of duty in negligence cases?
A claimant can typically prove a breach of duty by using witness evidence, particularly from witnesses of fact who observed the incident in question.
35
Describe the implications of the maxim in tort law regarding negligence.
The maxim raises a prima facie inference of negligence against the defendant, who must then provide a reasonable explanation for how the accident occurred without negligence.
36
How can a defendant counter a prima facie case of negligence in tort law?
A defendant can counter by either producing evidence showing how the accident happened without negligence or demonstrating that they exercised all reasonable care at all times.
37
Describe the duty of care in the context of tort law as illustrated in the example involving David and Fred.
In tort law, the duty of care refers to the legal obligation one party has to avoid causing harm to another. In the example, David owed a duty of care to his neighbor Fred by ensuring that his actions, such as lighting a bonfire, did not pose a risk to Fred's property.
38
How does causation relate to negligence in the scenario of David's bonfire and Fred's shed?
Causation in negligence refers to the link between the breach of duty and the resulting damage. In this scenario, it can be established that but for David's negligence in lighting the bonfire too close to the shed, the damage to Fred's shed would not have occurred, thus establishing causation.
39
Describe the 'but for' test in the context of negligence.
The 'but for' test is used to determine causation in negligence cases by asking whether the claimant's damage would have occurred 'but for' the defendant's negligence. If the damage would not have happened without the defendant's actions, then causation is established.
40
How did the case of Barnett v Chelsea and Kensington Hospital Management Committee illustrate the concept of causation in negligence?
In Barnett v Chelsea and Kensington Hospital Management Committee, the court found that although the hospital breached its duty of care by not examining the nightwatchman, the breach did not cause his death. Medical evidence indicated that he would have died from arsenic poisoning regardless of whether he had been treated, demonstrating that causation was not established.
41
Describe the challenge faced by courts in tort cases involving multiple potential causes of injury.
Courts must determine the cause of the claimant's injury, especially when there are several possible alternative causes, which complicates the application of the balance of probabilities test.
42
How did the case of Wilsher v Essex Area Health Authority illustrate the complexities of determining causation in tort law?
In Wilsher v Essex Area Health Authority, the claimant suffered blindness due to a combination of premature birth and negligent medical treatment, highlighting the difficulty in establishing a definitive cause when multiple factors are involved.
43
Describe the significance of the McGhee v National Coal Board case in relation to negligence and causation.
The McGhee v National Coal Board case established that a defendant could be found liable for negligence if their actions materially increased the risk of injury, even if it could not be proven that their actions directly contributed to the injury itself.
44
How did the Sienkiewicz v Greif (UK) Ltd case impact the understanding of material increase in risk in negligence claims?
The Sienkiewicz v Greif (UK) Ltd case confirmed that claimants could rely on the material increase in risk approach, allowing for liability even when direct causation was difficult to establish, although it also raised questions about the general applicability of this principle.
45
Describe the principle of divisible injury as established in Holtby v Brigham and Cowan (Hull) Ltd.
The principle of divisible injury allows for damages to be apportioned among multiple employers based on the length of time the claimant was exposed to harmful conditions, as demonstrated in the case where the claimant's asbestosis was linked to exposure during employment with several different employers.
46
How does the court determine the apportionment of damages in cases of divisible injury?
The court determines the apportionment of damages by evaluating the evidence of the claimant's exposure to harmful conditions during their employment with each defendant, and then dividing the damages according to the duration of that exposure.
47
Describe the difference in liability between defendants in a case like Holtby and cases where multiple defendants are responsible for the same damage.
In a case like Holtby, the court can allocate specific shares of damage to each defendant, making them liable only for their portion. In contrast, when multiple defendants are liable for the same damage, each is fully responsible for the total amount, allowing the claimant to recover full damages from any one of them.
48
How does the Civil Liability (Contribution) Act 1978 affect the position of defendants in negligence cases?
The Civil Liability (Contribution) Act 1978 allows defendants who are found liable for the same damage to seek contribution from each other, meaning they can share the financial burden of the damages awarded to the claimant.
49
Describe the role of a third party's actions in breaking the chain of causation.
The actions of a third party can intervene to break the chain of causation, but instinctive interventions do not break this chain, as demonstrated in the case of Scott v Shepherd.
50
Define intervening acts in the context of tort law.
Intervening acts refer to actions by third parties or events that can disrupt the causal link between a defendant's conduct and the claimant's injury, potentially absolving the defendant of liability.
51
Describe the relationship between the parties in a negligence case.
The relationship between the parties is crucial, as it establishes the expectation that one party will take reasonable care to prevent harm to the other, which can lead to liability in cases of negligence.
52
How does the court determine if the chain of causation has been broken in negligence cases?
The court assesses whether the actions leading to the harm were foreseeable consequences of the defendant's negligence, often relying on the specific circumstances of the case to make this judgment.
53
Describe the concept of remote damage in tort law.
Remote damage refers to a type of damage that is considered too far removed from a defendant's actions, meaning the defendant may not be held responsible for it. In the example of David's bonfire destroying Fred's shed, the loss of rent was deemed unusual and unexpected, leading to the conclusion that David should not be liable for that specific loss.
54
How does the example of David and Fred illustrate the principle of remote damage?
In the example, David's negligent act of lighting a bonfire resulted in the destruction of Fred's shed, which caused Fred to lose rental income. However, since the loss of rent was an unusual consequence of David's actions, it was determined to be too remote, suggesting that David should not be held fully responsible for this specific financial loss.
55
Describe the principle of remoteness of damage in negligence cases.
The principle of remoteness of damage states that if a claimant suffers an injury of a type that was foreseeable, it does not matter if the precise manner of the injury was not foreseeable.
56
How did the case of Hughes v Lord Advocate illustrate the concept of foreseeability in negligence?
In Hughes v Lord Advocate, the court confirmed that an injury must be reasonably foreseeable, as the defendant's negligence in leaving lit paraffin lamps unattended led to an explosion that caused foreseeable injuries to the claimant.
57
Describe the concept of duty of care in relation to pure economic loss.
The duty of care requires a sufficiently proximate relationship between the claimant and the defendant. In cases of pure economic loss, this relationship is generally lacking, leading to limited duty situations where defendants do not owe a duty of care to claimants.
58
How do courts limit the duty of care in cases of pure economic loss?
Courts limit the duty of care in cases of pure economic loss to prevent boundless liability for defendants, as a lack of proximity between the claimant and defendant could result in an indeterminate number of claimants.
59
Define consequential economic loss in the context of negligence.
Consequential economic loss refers to financial losses that occur as a direct result of physical damage to property, such as repair costs or lost use, rather than losses that are purely economic in nature.
60
Describe the relationship between physical damage and economic loss in negligence cases.
In negligence cases, economic loss can arise from physical damage to property. For example, if a person's property is damaged, the costs incurred for repairs and any loss of use are considered consequential economic losses, which can be recovered from the party responsible for the damage.
61
Describe the basic calculation for a dependency claim under the 1976 Act for a deceased individual.
The calculation involves determining the Multiplicand, which includes the deceased's net earnings, the value of job perks, and any services provided, minus personal expenses for the wife. For the grandmother, it includes the cost of rent and bills. The Multiplier for the wife is based on the husband's remaining working life, while for the grandmother, it is based on her life expectancy.
62
Describe the significance of the case Pickett v British Rail Engineering in relation to loss of future earnings.
The case established that claimants whose life expectancy had been shortened could recover loss of future earnings for the lost years.
63
How should damages for future loss of earnings be calculated according to the principles established in Pickett v British Rail Engineering?
Damages should be calculated by deducting the amount the claimant would have spent on themselves from their earnings, typically set at 25% for a married person with dependent children, to avoid over-compensation.
64
Describe the types of caregivers that can provide services for a personal injury claimant.
Services can be provided by professional carers, relatives, or friends. The identity of the carer may affect the amount recoverable for care costs.
65
How can a claimant recover costs for care services in personal injury cases?
A claimant can recover costs for care services if they can demonstrate that the costs were reasonable and in accordance with the usual market rate for such services.
66
Describe the principle behind calculating tort damages for claimants.
The principle ensures that claimants are not over-compensated and do not end up in a better position than they would have been if the accident had not occurred.
67
How are certain payments treated in tort claims regarding damages?
Certain payments, such as insurance payments, ill-health pensions, and charitable payments, are not deducted from the damages awarded to the claimant, allowing them to keep these benefits in full.
68
Describe the concept of provisional damages in personal injury cases.
Provisional damages are awarded when there is a chance of future deterioration in a person's condition. They allow for an initial compensation amount, with the provision that if the condition worsens, the individual can claim additional damages.
69
How does the Damages Act 1996 influence the awarding of damages for personal injury?
The Damages Act 1996 allows courts to award damages for personal injury as periodic payments instead of a lump sum, providing a structured and potentially more manageable way for claimants to receive compensation over time.
70
Describe the effect of death on a claimant's claim according to the Law Reform (Miscellaneous Provisions) Act 1934.
The 1934 Act allows existing causes of action to continue after the death of either the claimant or the defendant, meaning claims survive for the benefit of the claimant's estate and against the defendant's estate.
71
Define the types of claims that do not survive after death under the 1934 Act.
Claims for defamation and bereavement damages do not survive after the death of the claimant or the defendant according to the 1934 Act.
72
Describe a situation where the 1934 Act is not applicable in personal injury claims.
The 1934 Act is not applicable if the claimant has already received damages from the defendant before their death, either through a settlement or an award of damages.
73
How should damages be calculated for a claimant who has a reduced life expectancy due to negligence?
Damages should reflect the claimant's reduced life expectancy, considering that they are likely to die as a result of the defendant's negligence.
74
Define the requirements for claiming damages for loss of dependency under the 1976 Act.
To claim damages for loss of dependency, a person must satisfy two requirements: they must fall within the class of dependants as listed in the 1976 Act (including current and former spouses, civil partners, cohabitees, parents, children, and siblings) and they must have been actually financially dependent on the deceased, showing a reasonable expectation of pecuniary benefit.
75
Describe what is meant by 'pecuniary benefit' in the context of loss of dependency claims.
'Pecuniary benefit' refers not only to the provision of money but also includes the cost of replacing services provided by the deceased, such as child care, DIY, gardening, and housework.
76
How does the discount rate affect a claimant's compensation in personal injury cases?
A negative discount rate, such as minus 0.25%, increases the multiplier applied to the claimant's lump sum, resulting in a higher award for future loss of earnings, while ensuring that the claimant is not over-compensated.
77
How is the Multiplier determined for dependants in a personal injury claim?
The Multiplier for the wife is determined by the balance of the husband's working life, unless there is evidence suggesting either would die before that time. For the grandmother, the Multiplier is based on her life expectancy, which is typically less than that of the wife.
78
Define vicarious liability in the context of tort law.
Vicarious liability is a principle under which a person, typically an employer, is held liable for the torts committed by another person, usually an employee, without the requirement that the employer has committed a tort themselves.
79
How does vicarious liability affect the relationship between an employer and an employee in legal terms?
Under vicarious liability, both the employer and the employee can be held jointly liable for a tort committed by the employee, allowing a claimant to sue either party or both.
80
Describe the main differences between an employee and an independent contractor.
An employee performs a service for one employer and receives a wage, while an independent contractor provides services to multiple clients and is self-employed.
81
How can the distinction between employees and independent contractors be challenging?
In marginal cases, it can be difficult to determine whether a worker is an employee or an independent contractor, leading to the development of various legal tests to clarify the distinction.
82
Describe a scenario where an employee's actions during work could lead to liability for their employer.
An oil tanker driver smoking while unloading oil causes a fire by throwing away a match. This act, although unauthorized, occurs during the course of his employment, making the employer potentially liable.
83
How does the case of Harrison v Michelin Tyre Co Ltd relate to employee conduct during work?
In this case, an employee loses control of a wheelbarrow while larking about, injuring a colleague. The employee was performing his job but in a careless manner, which likely falls within the course of employment, implicating employer liability.
84
Describe the relationship between intentional torts and vicarious liability in the context of employment.
Intentional torts are often criminal acts, and typically, employers are not vicariously liable for such acts since they are neither authorized acts nor unauthorized ways of doing authorized acts. However, there are exceptions where employers have been found liable, such as in the case of Lloyd v Grace, Smith & Co.
85
How did the House of Lords address the issue of intentional torts within an employee's course of employment?
The House of Lords considered this issue in the case of Lister and others v Hesley Hall Ltd, examining whether intentionally committed torts could fall within the scope of an employee's course of employment.
86
Describe the implications of an employee deviating from their authorized route during work hours.
An employee's deviation from their authorized route can lead to being considered 'on a frolic of their own,' meaning they are not acting within the scope of their employment. This assessment involves evaluating the degree of geographical divergence and the departure from the assigned task.
87
How does the context of an employee's actions affect their liability in tort cases?
The context of an employee's actions, such as whether they are performing tasks related to their employment or engaging in personal activities, affects their liability. If an employee is found to be acting outside the scope of their employment, as in the case of visiting a relative instead of completing work tasks, the employer may not be held liable for any resulting incidents.
88
Define 'occupiers' liability' and its significance in legal terms.
Occupiers' liability refers to a special liability regime where statutory regulation and common law negligence combine to impose obligations on the occupier of premises. It is significant as it outlines the responsibilities of occupiers towards visitors and others, particularly in terms of safety and maintenance of the premises.
89
Describe the key factors a claimant must establish under the 1957 Act to prove an occupier's liability to a visitor.
To prove an occupier's liability under the 1957 Act, a claimant must establish that they have suffered loss due to the state of the premises, identify the occupier, and prove that they are a visitor.
90
Define the term 'occupier' in the context of premises liability.
An 'occupier' refers to a person or entity that has control over a premises, which can include multiple parties such as contractors working on a building development.
91
Describe the main concern of a lawyer's client in a tort of negligence case.
The main concern of a lawyer's client in a tort of negligence case is the remedy they hope to obtain from the defendant if they are successful in their claim.
92
How do general defences apply to torts other than negligence?
General defences may apply to various torts beyond negligence, and their applicability to other torts is explored in subsequent chapters of the book.
93
Describe the case of Morris v Murray and its significance in negligence law.
In Morris v Murray
94
How does the defence of volenti non fit injuria apply in negligence cases?
The defence of volenti non fit injuria applies when a claimant voluntarily accepts a known risk, thereby waiving their right to claim damages. In the context of Morris v Murray, the claimant was aware of the pilot's extreme drunkenness and chose to participate in the flight, which led the court to conclude that he accepted the risk of negligence.
95
Describe the significance of the Haynes v Harwood case in tort law.
The Haynes v Harwood case illustrates that rescuers, whether professional or lay, are protected under tort law when acting to save others from imminent danger, as the court ruled that the claimant did not willingly accept the risk of injury.
96
How does the defence of volenti apply in the context of rescuers according to Haynes v Harwood?
In Haynes v Harwood, the court determined that the defence of volenti, which argues that a person willingly accepted the risk of injury, does not apply to rescuers acting under compulsion to save others from imminent danger.
97
Describe the case of Ashton v Turner and its significance in the context of the defence of illegality.
In Ashton v Turner
98
Describe the principle established in Caswell v Powell Duffryn Associated Collieries Ltd regarding the expected care of employees in hazardous environments.
The principle established indicates that the degree of care expected from employees, such as those working in factories or mines, may differ from that expected of an ordinary person due to the unique risks and conditions they face. Courts are generally more lenient in finding contributory negligence against these employees.
99
How do dilemma cases affect the assessment of contributory negligence in personal injury claims?
Dilemma cases arise when a defendant's negligence places a claimant in imminent danger, forcing them to take action to protect themselves. In such situations, the court must consider whether the claimant's actions, taken to save themselves, can be deemed contributory negligence.
100
Describe the test applied by the court to determine contributory negligence in children.
The court assesses whether an ordinary child of the claimant's age would have taken more care for their safety than the claimant did.
101
How does the age of a child influence findings of contributory negligence?
The age of the child is crucial; for very young children, it is unlikely that a finding of contributory negligence would be made.
102
Describe the significance of the case Froom v Butcher in relation to seatbelt use and liability.
The case of Froom v Butcher establishes that a defendant must prove a causal link between the claimant's failure to wear a seatbelt and the injuries suffered, indicating that the claimant's negligence contributed to their injuries.
103
How does the case Capps v Miller relate to the use of crash helmets and contributory negligence?
Capps v Miller demonstrates that motorcyclists who do not wear crash helmets can have their damages reduced for contributory negligence, similar to the precedent set in Froom v Butcher regarding seatbelt use.
104
Describe the process the court follows when determining damages in cases of contributory negligence.
The court first calculates the full amount of damages that would have been payable without the claimant's contributory negligence. Then, it makes an appropriate reduction based on the claimant's share of responsibility for the damage.
105
How does the case of Reeves v Metropolitan Police Commissioner illustrate the principle of contributory negligence?
In the case of Reeves v Metropolitan Police Commissioner, the deceased was found 50% to blame for his own death while in police custody, resulting in only 50% of the damages being recoverable.
106
Describe the role of defences in a negligence claim.
Defences in a negligence claim can eliminate or reduce a defendant's liability for compensating a claimant, even if the claimant proves all elements of negligence such as duty of care, breach of duty, and causation of damage.
107
Define the types of harm that claimants may suffer in negligence cases.
Claimants in negligence cases may suffer harm such as damage to property, like a car damaged in a motor accident, and personal injury, such as a broken leg caused by a tripping accident.
108
Describe the aim of compensatory damages in tort law.
The aim of compensatory damages in tort law is to put the claimant in the same position they would have been in if the tort had not been committed.
109
How are damages typically quantified in cases of personal injury or property damage?
Damages are typically quantified in monetary terms, allowing the claimant to repair or replace damaged property or restore lost earnings.
110
Define special damages in the context of tort law.
Special damages refer to losses that can be precisely calculated at the time of trial, typically covering financial losses incurred before the trial, such as loss of earnings.
111
Describe the difference between general damages and special damages.
General damages are losses that cannot be precisely calculated and are determined by the court, including pain, suffering, and loss of amenity, while special damages are quantifiable financial losses.
112
Describe the concept of 'loss of amenity' in personal injury claims.
'Loss of amenity' refers to the detrimental effects of an injury on a claimant's enjoyment of life, including the inability to engage in previous interests or activities, such as playing sports.
113
How do damages for pain and suffering relate to personal injury claims?
Damages for pain and suffering cover the physical and mental anguish experienced by the claimant due to the injury, including past, present, and future pain, as well as the fear of future surgeries and the awareness of a shortened life expectancy.
114
Describe the difference between non-pecuniary and pecuniary damages in tort law.
Non-pecuniary damages refer to general damages that cannot be precisely calculated, such as pain and suffering or loss of amenity. In contrast, pecuniary damages are quantifiable financial losses that can be calculated in monetary terms.
115
How do lawyers estimate damages for a tort case?
Lawyers find cases similar to the one at hand to obtain a rough guide for estimating the amount of damages a client may recover, particularly for non-pecuniary losses.
116
Describe the implications of section 2(4) of the Law Reform (Personal Injuries) Act 1948 regarding private medical treatment costs.
A claimant cannot be found to have failed to mitigate their loss by opting for private medical treatment instead of free treatment under the NHS, and can recover the reasonable costs of private medical treatment.
117
How are loss of earnings calculated for a claimant pre-trial in personal injury cases?
Loss of earnings pre-trial are calculated based on the principle of restoring the claimant to the position they would have been in had the accident not occurred.
118
Describe the process the court uses to assess future loss of earnings for a claimant.
The court first determines the claimant's gross annual loss at the date of the trial, considering factors such as current earnings and potential future increases due to promotions.
119
How does the court account for potential future earnings in its calculations?
The court considers whether the claimant would have likely received an increase in earnings, such as through promotions, and includes this potential increase in the assessment of the claimant's loss.
120
Describe the role of Ogden tables in personal injury claims.
Ogden tables are actuarial tables used by courts to determine the correct multiplier for calculating compensation in personal injury claims, based on the claimant's age and the assumed discount rate of interest.
