Tort & Negligence

Question 1

‘The eggshell skull’ is an analogy that indicates you must ‘take your victim as you find them’. This principle refers to what.

Answer 1

That every individual is different, and the fact that someone has a particular thin skull for example that is susceptible to injury, this will NOT break the chain of causation.

Question 2

How does a professional is the industry discharge their duty of care.

Answer 2

By conforming to the standard of a reasonable competent member of that profession.

Question 3

What does Vicarious Liability refer too.

Answer 3

Sometimes a master is liable for the torts of his servants, In the context of employer and employee.

Question 4

Section 6 of the Rights of 3rd Parties Act 1999 details what.

Answer 4

Restrictions on the rights created by the Act.

Question 5

Section 3 of the Rights of 3rd Parties Act 1999 details what.

Answer 5

Deals with defences available to the party against which the 3rd party seeks enforcement.

Question 6

What are the three exceptions to the law of Privity

Answer 6

The law of Agency; The principal person may sue and be sued on contracts made by their agent. A stranger may sue a contract under seal respecting to land or other property - Third Party insurance policy needed. Restrictive Covenants; certain conditions are enforceable against a person who subsequently acquires the land.

Question 7

In the cases of where surveyors (property valuers) have been negligent, damages are assessed on what basis.

Answer 7

Diminution of value basis.

Question 8

If the contract confers a benefit on the 3rd party, it must what.

Answer 8

The contract confers a benefit on the 3rd party, who must be expressly identified by name, class or description. The right can be enforced only subject to other terms of the contract.

Question 9

Once a duty of care and a breach of that duty has been established, the claimant must also show that there has been consequential foreseeable damage. What two things need to be established in order to prove the consequential foreseeable damage.

Answer 9

Causation as a matter of fact - the breach of duty caused the injury. Causation as a matter of law - the injuries are not too remote.

Question 10

What is the common Law of Privity

Answer 10

A contract cannot be enforced against a person who is not party to the contract.

Question 11

A minor cant be a defendant in their torts which involve negligence due too.

Answer 11

it being difficult to show that young children are necessarily aware of their actions.

Question 12

Duty of care is owed to trespassers under the occupiers liability act of 1984 if

Answer 12

The occupier is aware of the danger or has reasonable grounds to believe that it exists. The occupier knows or has reasonable grounds to believe that someone is in the vicinity of the danger or may come into the vicinity.

Question 13

Liability in Tort is usually based on what.

Answer 13

Fault. With the exception of ‘Strict Liability’

Question 14

What is Tort

Answer 14

A tort is an act or omission, other than a breach of contract or trust, which causes damage to another, in her or his person, pocket, or reputation for which the Common Law provides a remedy in unliquidated damages.

Question 15

What are the main difference between Tort and Contracts

Answer 15

Contractual duties: One party agrees and chooses to enter into contractual duties with another party. Tortious Duties: Imposed by law and apply whether we agree or not.

Question 16

Section 7 of the Rights of 3rd Parties Act 1999 details what.

Answer 16

Other rights of 3rd parties are generally unaffected.

Question 17

Section 4 of the Rights of 3rd Parties Act 1999 details what.

Answer 17

Ensures the right of the original contracting party to enforce the contract is not affected.

Question 18

Section 5 of the Rights of 3rd Parties Act 1999 details what.

Answer 18

Deals with the situation in which the original contracting party has already recovered in respect of the 3rd party’s losses.

Question 19

What three elements need to be in place for Negligence to occur

Answer 19

There needs to be a duty of care There needs to be a breach of that duty Damages which are consequential and foreseeable

Question 20

A duty of care applies to negligence claims if

Answer 20

It can be proved that the defendant owed the claimant a duty of care, and if it is reasonably foreseeable that they could be injured by your carelessness.

Question 21

The person who commits the Tort (The defendant) is known as what

Answer 21

The Tortfeasor

Question 22

What act would third parties need to refer to when by passing the law of Privity

Answer 22

Rights of 3rd Parties Act 1999

Question 23

What test is usually in place to establish if a duty of care exists, and what three stages of that test need to be imposed.

Answer 23

The ‘reasonable man’ test. Would a reasonable person have foreseen the probability of injury to the claimant. Is the damage foreseeable Is the damage between the parties sufficiently proximate Is it fair and reasonable to impose duty.

Question 24

Parents are not responsible for the torts of their children unless…

Answer 24

The tort of the child is caused by their negligent control or parenting.

Question 25

Occupiers of premises (Person who has control or possession - not necessarily the owner) owe a duty of care to visitors and trespassers in respect to what act.

Answer 25

Occupiers Liability Act of 1957 (Lawful Visitors) 1984 (Trespassers)

Question 26

What is Negligence

Answer 26

Negligence is the breach of a legal duty to take care which results in damage.

Question 27

Duty under the occupiers Liability Act of 1957 may be discharged by giving what.

Answer 27

Warning signs. For the signs to be effective, it must sufficiently identify the source of the danger and bring it adequately to the visitors attention.

Question 28

What is an example of Privity in the construction industry

Answer 28

The employer may use a clause to pay the sub-contractor directly but the sub-contractor can’t enforce the client as they’re not part of the main building contract.

Question 29

Section 8 of the Rights of 3rd Parties Act 1999 details what.

Answer 29

3rd party to be treated as a party to applicable arbitration agreement as regards enforcement of their right.

Question 30

Section 1 of the Rights of 3rd Parties Act 1999 details what

Answer 30

Circumstances under which a 3rd party may have the right to enforce a term of the contract.

Question 31

Occupiers Liability falls under a duty of care that is imposed by what.

Answer 31

Statute. Other examples of statute imposing a duty of care are; employers liability, health and safety.

Question 32

What type of law makes up the majority of Tort law

Answer 32

Case Law

Question 33

Section 2 of the Rights of 3rd Parties Act 1999 details what.

Answer 33

Restricts the way in which the original contracting parties can alter the 3rd party’s entitlement, by cancelling or varying the contract without their consent, subject to any express