Tort of Negligence

Question 1

What is a tort?

Answer 1

A civil wrong that entitles the claimant to compensation.

Question 2

What is tortious liability?

Answer 2

Imposed through civil law and requires the party to take reasonable care not to negligently or intentionally cause harm, many torts establish a fault liability to proceed.

Question 3

What is the tort of negligence?

Answer 3

A breach in the duty of care, claimant must prove the defendant owes the claimant a duty of care, that they broke this duty, and that the claimant suffered a loss or injury as a result of the breach.

Question 4

What are the three elements of negligence?

Answer 4

1) Defendant owed claimant a duty of care.
2) Defendant breached that duty of care.
3) Claimant suffered loss or injury as a result of the breach.

Question 5

What is a duty of care?

Answer 5

Claimant must show they were someone who in the circumstance the defendant should have had in mind when embarking on the conduct that led to the alleged loss/damage.

Question 6

What is the three-stage test to determine a duty of care?

Answer 6

1) Proximity of relationship.
2) Foreseeability of loss.
3) Whether it is fair, just, and reasonable to impose a duty.

Question 7

What is a breach of the duty of care?

Answer 7

Falling below the reasonable man standard and exposing the claimant to unreasonable risk to harm.

Question 8

What is the reasonable man standard?

Answer 8

The behaviour expected of an ordinary, rational individual. Assesses whether the defendant’s actions align with that of how the reasonable man would have hypothetically acted.
1) No allowance for a lack of intelligence.
2) Must take into account the shortcomings of others.
3) Special skill means a higher standard.
4) Obligation to display professional skill.

Question 9

What is the principle of risk and in what three ways is it measured?

Answer 9

Exposing the claimant to unreasonable risk. Measured by:
1) Magnitude of risk.
2) Social utility/desirability of activity.
3) Cost/practicality of measures to minimise risk of harm.

Question 10

What is consequential damage?

Answer 10

Must be a causal link between the injury suffered and he breach of duty, the damage suffered must also be recognized by law.

Question 11

What is the but for test?

Answer 11

Assesses the causation of damage, if the damage would not have occurred but for the actions of the defendant then their action is the cause of damage.

Question 12

What is the egg-shell skull rule?

Answer 12

Defendant must take the claimant as they find them, if the claimant had a pre-existing condition exacerbated by the defendant’s actions then the defendant can’t escape liability by asserting another person would not have experienced the same level of damage.

Question 13

What three steps must be satisfied to make a successful claim of negligence?

Answer 13

1) The duty of care / three-stage test.
2) A breach of the duty - reasonable man standard and the principle of risk.
3) Consequential damage - establishing causation and the but for test.

Question 14

What two ways can negligence be defended?

Answer 14

1) Volenti non fit injuria - the claimant knew and willingly consented to risk.
2) Contributory negligence - if the claimant is partly to blame for the accident or for increased injuries.

Question 15

What is res ispa loquitur?

Answer 15

Where the court can infer negligence from the mere nature of the accident, claimant is relieved of the burden of proof and it moves to the defendant.
1) Where defendant had exclusive control of something/someone which caused the damage.
2) Where the occurrence couldn’t have occurred without negligence (if it could then res ispa loquitur fails).
3) Where the cause of the occurrence is unknown (res ispa loquitur fails where the defendant can show the accident shows no negligence on their part).

Question 16

What three things break the chain of causation?

Answer 16

1) A natural event.
2_ Act of a third party.
3) Act of the claimant.

Question 17

What are the two types of victims of psychiatric injury?

Answer 17

1) Primary victim - physically endangered by defendant’s conduct and subsequently suffers psychiatric injury.
2) Secondary victim - not personally at risk of physical injury but suffers psychiatric injury due to witnessing someone else being harmed.

Question 18

What are the three questions in vicarious liability?

Answer 18

1) Can an employer/employee relationship be established?
2) Has the employee committed a tort?
3) Did the employee commit the tort in the course of employment?

Question 19

What is the three criteria to be met to establish a contract of service?

Answer 19

1) Employee agreed to provide work in exchange for wages.
2)Employee expressly/impliedly agreed to be subject to employers’ control.
3) Other contractual terms are consistent with a contract of employment.

Question 20

What are the three criteria to establish sufficient connection with the tort?

Answer 20

1) Act must be incidental to the job the employee was employed for.
2) Act should have been authorised by the employer.
3) Authorised act has been done wrong, negligently, or in an unauthorised manner.

Question 21

What three ways can the employer be liable?

Answer 21

1) Vicariously liable for a tort committed by an employee that has injured the employee.
2) Employer may be in breach of a statutory duty that caused injury to the employee.
3) Employer may be in breach of their personal duty of care to the employee which resulted in injury.

Question 22

What four things are an employer’s duty?

Answer 22

1) Provide competent fellow employees.
2) Provide safe plant and appliances.
3) Provide a safe space for work.
4) Provide a safe system of work.

Question 23

What is occupiers’ liability?

Answer 23

Liability of an occupier for damage to done to visitors on the premises, Court is sympathetic for wandering children.

Question 24

Who is an occupier?

Answer 24

Someone who has sufficient control over the premises and so owe a duty of care to those lawfully on the premises.

Question 25

What three things does the Occupiers’ Liability Act 1984 state in regard to trespassers?

Answer 25

1) Occupier was aware of danger or should have reasonably known it existed.
2) Occupier knew or has reason to believe the trespasser was in the vicinity of danger or is likely to come in the vicinity.
3) The risk is one the occupier could have reasonably be expected to offer some protection against.

Question 26

What is nuisance?

Answer 26

Protecting a persons’ interest in their use or enjoyment of property

Question 27

What are the three types of nuisance?

Answer 27

1) Public nuisance.
2) Statutory nuisance.
3) Private nuisance.