Tort Unit 1 SBAQs Flashcards
Is it TRUE or FALSE to say that a person might cause damage due to their carelessness, but if they do not owe a duty of care to the person they harm, there can be no successful claim in negligence
TRUE:
the statement is true. The first element of a claim in negligence is to show that a duty of care is owed. If there is no duty, there can be no claim, even though damage may have been caused due to the fault of another person.
Which of the following relationships give rise to an established duty of care in negligence?:
A. Doctor and patient
B. Driver and other road users
C. Driver and Passenger
D. Parent and child
E. Teacher and pupil
All of these are established duty situations
Is the following statement TRUE or FALSE?
In a negligence claim it is always necessary to apply the novel duty test (from Caparo Industries plc. v Dickman) in order to establish that a duty of care is owed by the defendant to the claimant.
FALSE:
In the tort of negligence there are two types of duty of care situation:
i. Established duty – A situation in which previous case law clearly establishes that a duty of care is owed.
ii. Novel duty – A situation in which there is no case law exactly matching the current situation, so that the issue of whether a duty of care is owed remains open for decision.
It is only necessary to apply the Caparo test in a novel duty situation.
Which ONE OR MORE of the following form the requirements for the imposition of a duty of care in a novel duty situation?
A. That it be fair, just and reasonable to impose a duty of care on the defendant
B. The ‘but for’ test
C. Proximity of relationship between claimant and defendant
D. Lack of reasonable care
E. Causation of damage
F. Foreseeability of harm to the claimant
The correct answers are: A, C and F.
The following are the requirements for the imposition of a duty of care in a novel duty situation:
Foreseeability of harm to the claimant
Proximity of relationship between claimant and defendant
That it be fair, just and reasonable to impose a duty of care on the defendant
In the Caparo test for a duty of care in novel situations, which ONE of the following BEST describes the requirement for foreseeability?
A. It was foreseeable that the defendant’s actions could cause some harm to someone.
B. The accident was one which was foreseeably likely to happen
C. It was foreseeable that negligence on the part of the defendant could cause harm to the claimant – the claimant was a foreseeable victim
D. The defendant ought to have foreseen that his actions might cause harm and taken more car
The correct answer is C. The best description of the role of foreseeability in the Caparo ‘test’ for duty of care in novel situations is:
It was foreseeable that negligence on the part of the defendant could cause harm to the claimant – the claimant was a foreseeable victim. This answer captures the requirement for a foreseeable victim. It is not sufficient that the defendant behaved in a way which was likely to cause harm to someone – in the abstract. A claimant needs to show that a duty was owed to them – i.e., that the defendant’s conduct carried a risk of harm to this claimant.
Select which ONE or MORE of the following statements is or are CORRECT?:
A. A person can never be held liable for their omission to act.
B. A person may potentially be liable if they owe no positive duty to act but choose to act.
C. Some relationships may give rise to a positive duty to care
B and C are correct.
A is incorrect. Generally an omission does not give rise to liability but there are exceptions. For example, a person with power or control over another person has a positive duty to exercise that control.
B is correct. A person may not owe a duty to act, but if they chose to do so, they may owe a duty if they make the position worse than it would have been without their intervention.
C is correct. For example, parent and child.
Which ONE OR MORE of the following correctly describe the role of foreseeability in establishing breach of duty?
A. The greater the foreseeability of harm, the more the defendant should take precautions
B. The more serious the harm foreseen, the more the defendant should take precautions
C. In assessing breach of duty, the question is not whether the defendant actually foresaw the risk of harm but whether a reasonable person would have foreseen it
The correct answers are A, B and C. All of these statements together correctly describe the role of foreseeability in establishing breach of duty.
Which ONE OR MORE of the following is or are CORRECT?:
A. If a defendant in a road traffic accident has previous convictions for driving without due care and attention this will automatically mean that breach is proved.
B. When judging whether a defendant was negligent their actions will be judged according to the state of knowledge at the time when the damage was caused.
C. A child below the age of 15 can never be in breach of a duty of care.
D. Professionals can be in breach of duty if they have not kept themselves up to date with recent developments in their field
B and D are correct.
A is incorrect. A conviction needs to be relevant if it is to be used as evidence of negligence. So, it must relate to the actual accident and not any other. Where there is a relevant conviction, its effect is to shift the burden of proof, so that the defendant must now show that he is not in breach of duty.
B is a correct statement of the law. Even if more up to date knowledge later becomes available, a defendant is not judged with the benefit of hindsight.
C is incorrect. There is not a set age below which the defendant cannot be found to be in breach.
D is a correct statement of the law. Professionals are judged in the light of knowledge existing at the time of the alleged breach
Which of the following best describes the standard of care a defendant in a negligence claim is expected to meet.
A. The defendant must do their best according to their ability.
B. The defendant must exercise the standard of care which would be expected of an ordinary reasonable person in their position.
C. The defendant must act in good faith.
D. The defendant must not intentionally cause harm
B is correct: The defendant must exercise the standard of care which would be expected of an ordinary reasonable person in their position. The test is an objective one.
Select which one or more of the following is or are TRUE.
A. The reasonable man test involves assessing risk on the one hand balanced against the practicality of taking the precaution.
B. The reasonable man should never take into account the cost of taking precautions.
C. Children can be expected to be less careful than adults.
D. Learner drivers are expected to exercise the same standard of care as experienced drivers.
E. Doctors can escape liability if they can show there is an established body of medical opinion that would approve of that practice.
A, C, D, and E are all true. B is false.
A is true and B is false as shown in Latimer v A.E.C Ltd [1953].
C is true as seen in Mullin v Richards [1998].
D is true as shown in Nettleship v Weston [1971].
E is true as shown in Bolam v Friern Hospital Management Committee [1957].
Is the following statement TRUE or FALSE? A defendant who complies with the accepted practice in their trade or profession will always escape liability in negligence.
The statement is false. Compliance with an accepted trade practice is strong evidence that a defendant has not been negligent, but it is not conclusive. The practice itself may be a negligent one.
A claimant is employed by a hospital as a research biochemist. One afternoon, while conducting an experiment in the hospital laboratory, they lit a gas Bunsen burner and there was a small explosion. As a result of the explosion the claimant sustained burns to their hand.
The hospital has had the Bunsen burner inspected by an expert who has reported that they cannot find anything wrong with it.
Which statement best explains whether the claimant will be owed a duty of care by the hospital?:
A. Yes, because the type of harm was foreseeable, the claimant and the hospital were in a proximate relationship and it is fair, just and reasonable to impose a duty of care on the hospital.
B. Yes, because there is an established duty between the claimant and the hospital as the type of harm was foreseeable, the claimant and the hospital were in a proximate relationship and it is fair, just and reasonable to impose a duty of care on the hospital.
C. Yes, because there is an established duty between the claimant and the hospital.
D. No, because the expert evidence suggests that it would not be fair, just or reasonable to impose a duty of care on the hospital.
E. No, because the expert evidence suggests that the harm suffered by the claimant was unforeseeable.
Option C is correct as the claimant can rely upon the established duty of care between an employer and its employees.
Option A is wrong because, while the foreseeability, proximity and fairness would seem to be satisfied, this is not why a duty of care would be owed in this case. The Caparo ‘test’ (from Caparo Industries plc v Dickman [1990] 1 All ER 568) is only relied upon in novel (new) duty situations. If the claimant falls within an established duty situation then they will not be required to satisfy the Caparo ’test’.
Option B is wrong because, while it does correctly state that this is an established duty situation, it does not depend upon this claimant having to satisfy the Caparo’ test’.
Option D is wrong because it is confusing the issue of whether a duty of care is owed with whether the defendant may be in breach of its duty.
Option E is wrong for the same reason as option D.
A man owns a house near to the boundary of his local cricket club. His garden boundary is only 30 metres (100 feet) away from the cricket ground, and his house is only 18 metres (60 feet) further away. Cricket balls have been hit onto his property 12 times in the last 12 months causing minor damage to his house.
The cricket club has a four-metre (13 feet) fence around the ground but have refused to consider building a higher fence to prevent cricket balls from leaving the ground. The club have stated that they do not have the money to fund the building of a newer fence. The club have also stated that the man should appreciate that the playing of sport is a ‘good thing’ and that he should simply put up with the risk of his house being hit by cricket balls ‘every now and then’.
Which of the following statements best describes whether a court would decide that the cricket club have breached their duty of care in negligence?
A. Yes, because the cricket club could reasonably foresee that the damage to the man’s house was likely.
B. Yes, because the cricket club could reasonably foresee that the damage to the man’s house was likely and the cost of building a higher fence was reasonable in the circumstances.
C. Yes, because the cricket club could reasonably foresee that the damage to the man’s house was likely and the public interest in the playing of sport is not a relevant consideration.
D. No, because, the cricket club could reasonably foresee that the damage to the man’s house was likely, but the cricket club did not have the resources to prevent the risk.
E. No, because the cricket club could reasonably foresee that the damage to the man’s house was likely and the court are bound by the fact that it is the common practice of cricket clubs to have fences that are not higher than four metres.
Option B is correct – the court would consider the how likely the risk created by the club’s activities was and what reasonable precautions should be taken to eliminate the risk.
Option A is wrong because it fails to appreciate what precautions the club ought to reasonably have taken in response to a foreseeable risk.
Option C is wrong as the public interest in the activities undertaken by the club is a relevant consideration.
Option D is wrong as, if the court were to decide that it was reasonable to build a higher fence, the lack of resources of the club are not generally a relevant consideration.
Option E is wrong as, while the court do consider common practice, it is not conclusive, and the court can ignore it if the practice was considered to be negligent
A claimant was severely injured while canoeing on a river on their own. They had previously purchased a guidebook published by the defendant and chose a stretch of the river because it was described in the defendant’s guidebook as ‘a pleasant paddle on the river’. The description was in fact grossly inaccurate and the defendant has now changed their description in their new edition of the guidebook to read ‘this part of the river is dangerous and should not be attempted’.
There is no previous case law that establishes whether the defendant owes the potential claimant a duty of care in negligence. The defendant is a registered charity and all proceeds of the sale of their guidebook are used to promote their charitable purpose.
Which of the following statements best describes whether the defendant owes the claimant a duty of care in negligence?:
A. Yes, because the claimant is a foreseeable victim. It seems likely that any lack of care by the defendant in advising on the safety of the river could cause harm to the claimant.
B. Yes, because the claimant is a foreseeable victim and there was a relationship of sufficient proximity between the claimant and the defendant to justify imposition of a duty of care. The fact that the claimant had purchased the guidebook would determine the issue.
C. Yes, because the defendant chose to publish the guidebook and the defendant was also clearly at fault. It is only fair, just and reasonable therefore that the claimant should be owed a duty of care.
D. No, because while the claimant is a foreseeable victim, the court will be reluctant to find that the defendant undertook any responsibility towards the claimant. The court may also consider policy issues and determine that it would be unfair for a charity to be liable to the public in these circumstances.
E. No, because while the claimant is a foreseeable victim, there was not a relationship of sufficient proximity between the claimant and the defendant to justify imposition of a duty of care. However, the court will not consider any policy issues as that is beyond their remit.
Option D is correct – it considers (and applies correctly) all three limbs of the Caparo ’test’.
Option A is wrong because, while the injury to the claimant is foreseeable, this is not the only criteria that the court would consider when determining whether a duty of care is owed in a novel situation. The court would also consider the proximity of relationship between the parties and whether it would be fair, just and reasonable to impose a duty of care.
Option B is wrong because the court would consider whether it would be fair, just and reasonable to impose a duty and the fact that the claimant had purchased the guidebook would not determine the issue.
Option C is wrong because the fact that the defendant may have been at fault does not determine the issue of whether a duty of care is owed. Option C also fails to consider the first two limbs of the Caparo ’test’.
Option E is wrong because the courts can consider policy issues under the third limb of the Caparo ’test’.
The claimant owns and occupies property which is next to a cinema. The cinema is being redeveloped by the defendants. The defendants have commenced work but leave the building locked and unattended at night. Vandals have broken in on a few occasions and started small fires. The defendants did not have any knowledge of these fires as they were extinguished by passers- by. However, on the last occasion the vandals broke in and started a large fire which spread and caused extensive damage to the claimant’s property. The claimant is seeking advice as to whether it should sue the defendants in negligence for the damage caused.
Which of the following statements best describes why the defendants do not owe the claimant a duty of care in negligence?
A. Because the general rule is that there is no duty of care owed for omissions.
B. Because the duty on an occupier would be too wide if it was held responsible for damage caused to neighbouring property by third parties entering the occupier’s property.
C. Because the claimant’s damage was caused by the defendants’ failure to act and the defendants had no control over the vandals.
D. Because the defendants are not at fault as they did not start the fire.
E. Because there is never a duty of care owed by a defendant to a claimant for the actions of third parties.
Option C is correct – defendants can be liable for their omissions if they have a positive duty to exercise control over third parties but this principle does not apply to the facts of the claimant’s case. The defendants were not in a special (proximate) relationship with the vandals and would not be expected to exercise control over them.
Option A is only partially correct because, while the general rule is that there is no duty of care owed for omission, there are exceptions to this general rule.
Option B is also only partially correct because, while the courts can consider the wider ramifications of their decision (ie policy), this is not in itself cause of an exception to the general rule that there is no duty for omission.
Option D is wrong as, while the defendants may or may not have been at fault, this is not an issue that determines whether a duty of care is owed (it is, however, relevant to breach).
Option E is wrong as the statement is too absolute, ie there are exceptions (eg Home Office v Dorset Yacht Co Ltd [1970] AC 1004), but this exception does not apply to the claimant’s facts.
