tort law

Question 1

what is the 3 stage test (caparo) for duty of care?

Answer 1

1) foreseeability of harm (reasonable person)
2) relationship of sufficient proximity
3) must be fair, just and reasonable to impose a duty

Question 2

what does a learner driver owe a duty of care - what is the standard? to not cause….

Answer 2

owe a duty of care not to cause reasonably foreseeable harm = all road users owe other road users a duty of care

Question 3

what are the 5 exceptions to the rule on omissions (tort law)?

Answer 3

1) statutory duty
2) contractual duty
3) D has sufficient control over the C
4) D assumes responsibility for the C
5) D creates a risk

Question 4

what are the 4 exceptions to the rule that there is no duty for failing to prevent a third party from causing harm?

Answer 4

1) sufficient proximity between D and C
2) sufficient proximity between D and third party
3) D created the danger
4) risk was on D’s premises

Question 5

do the ambulance owe a duty of care?

Answer 5

yes they owe a duty of care to respond to 999 call within a REASONABLE time

Question 6

do the fire brigade owe a duty of care?

Answer 6

no - but if they go to a fire they owe a duty of care not to make the situation worse via a positive act

Question 7

do the police owe a duty of care?

Answer 7

no they do not owe a duty of care to respond to emergency calls

Question 8

does a coastguard owe a duty of care?

Answer 8

no, they dont owe a duty of care to rescue, but if they do attempt to rescue then they owe a duty not to make the situation worse

Question 9

does a doctor owe a duty of care to a patient?

Answer 9

yes, because once they accept the patient for treatment then medical staff must provide care and skill expected of them.

Question 10

what is the standard that medical professionals are required to inform the risks to their patients?

Answer 10

they are required to inform of any material risks involved in recommended treatment

Question 11

what is a material risk?

Answer 11

it is one that a reasonable person in the patients position would likely attach significance to, or the doctor should reasonably be aware that the particular patient would attach significance to

Question 12

what is the Bolam test professional standard?

Answer 12

standard of the ordinary reasonable man exercising and professing to have that skill

Question 13

what is the standard required of a child?

Answer 13

standard is that of the reasonable child of the D’s age carrying out that act

Question 14

as part of the Bolam test when has a D not fallen below the standard?

Answer 14

a professional is not guilty of negligence if they acted in accordance with a practice accepted as proper by a responsible body of professional opinion. not necessary for technique to be widely adopted, as long as a reasonable body supports it

Question 15

how is the standard of care altered for a person who has illness or a disability?

Answer 15

if they were aware of the impairment then they are held to the reasonable man test

if not aware then standard is of a reasonable competent …. who is unaware that he is suffering a conduction that impairs him.

Question 16

what does likelihood of harm mean? (bolton v stone)

Answer 16

the more likely someone is to get injured the more likely there will be a breach

eg, reasonable person wouldn’t have guarded against such a small risk

Question 17

what does magnitude of harm mean? (Paris)

Answer 17

if any injury that may occur would be serious, greater care will be needed than if the risk was a more minor injury

Question 18

what does practicality of precautions mean? (Latimer)

Answer 18

necessary to ascertain how easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk. D need only act reasonably = if it is unreasonable to require them to take necessary precautions, even against clearly foreseeable risk then the court will not impose a duty

Question 19

what does benefit of the D’s conduct mean? (watt)

Answer 19

the value of society of the D’s activity is a factor the courts consider. if D has taken a risk with the aim of preserving or protecting life, limb or property then this may be justified.

(potential benefits to safety are weighed against any possible damage that may result if the risk is taken)

Question 20

in a professional negligence case if it concludes that the practice is commonplace but it is not logical - has the D breached their duty?

Answer 20

yes, if the opinion doesnt withstand logical analysis then the D is in breach of duty (Bolitho)

Question 21

what is factual causation?

Answer 21

but for test = on the balance of probabilities, but for the D’s breach of duty would the C have suffered their loss at that time and in that way

Question 22

when do you use the material contribution test?

Answer 22

cumulative causes = when there is more than one cause of the C’s loss and the causes were acting together cumulatively to cause the loss.

the exact contribution of each factor cannot be definitely isolated.

Question 23

what is the material contribution test?

Answer 23

more than negligible contrition to the loss (Bennington)

operating cumulatively together

Question 24

what test do you use for mesothelioma and lung cancer caused by asbestos cases? (industrial cases)

Answer 24

material increase in risk test

Question 25

what is the material increase in risk test?

Answer 25

C needs to show D’s breach materially increased the risk of harm suffered by D

(only for asbestos cases)

Question 26

what types of causes need to occur to apply the material contribution test?

Answer 26

sequential contribution causes and simultaneous cumulative causes

Question 27

what type of loss can loss of chance be argued?

Answer 27

when the loss is pure economic loss

Question 28

what is apportionment?

Answer 28

when there is multiple tortious factors that have caused the loss, it divides liability between the Ds in a way that produces a practical result, providing compensation to C whilst recognising the respective fault go the Ds.

Question 29

in mestholemia cases how are negligent employers held (when there are multiple sufficient causes)?

Answer 29

they are jointly and severally liable - any or all of the negligent employers who exploded C to asbestos will be liable for C for whole sum of damages.

Question 30

if the second event is tortious - what is the liability for the first D and the second D?

Answer 30

first D is liable for the original damage past the point of the 2nd event. second D is liable for any additional damage

Question 31

if the second event is naturally occurring - what is the D’s liability?

Answer 31

D is liable for damages only up until the natural event

Question 32

if the second D hasnt caused any additional damage - what is their liability?

Answer 32

they are not liable

Question 33

what are the 3 types of novus actus events? (intervening acts)

Answer 33

1) acts of god
2) acts of third party
3) acts of C

Question 34

what must an act of god be for it to break the chain in causation?

Answer 34

it must be an exceptional natural event

Question 35

what must an act of a third party be for it to break the chain in causation?

Answer 35

it must be high unforeseeable

Question 36

what must an act of a third party (medical treatment) be for it to break the chain in causation?

Answer 36

it must be so gross and egregious as to be unforeseeable (as it doesnt normally break the chain of causation)

Question 37

what must an act of C be for it to break the chain in causation?

Answer 37

must be highly unreasonable (normally dealt with under contributory negligence)