Understanding The Nature Of The Law Of Tort (C4) Flashcards
Q: What is a tort?
A: A tort is a breach of a legal duty, and liability only arises if the law recognizes the duty exists.
Q: Do parties need a prior relationship for a tort claim?
A: No, a tort claim does not require a prior relationship between parties, unlike a contract claim.
Q: How do damages differ between contract and tort claims?
A: Contract damages aim to put the claimant in the position as if the contract was performed; tort damages aim to restore the position as if the tortious act hadn’t occurred.
Q: What is the limitation period for contract claims?
A: The limitation period for contract claims is six years from the breach.
Q: What are the limitation periods for tort claims?
A: Generally six years, but only three years for personal injury cases.
Q: What must be proven for a tort claim to be successful?
A: There must be an act or omission by the defendant, direct causation of damage or injury, and legal liability.
Q: What does “too remote” mean in tort law?
A: Damage or loss claimed must be a direct consequence of the defendant’s actions or inactions, not “too remote.”
Q: What is the definition of negligence?
A: Negligence is a breach of a legal duty to take care, resulting in damage to another.
Q: What must a claimant prove for a successful negligence claim?
A: The claimant must prove:
• A duty of care was owed by the defendant.
• The defendant breached this duty.
• Damage or loss was caused as a result of the breach.
Q: What is the Duty of Care Principle?
A: There is a duty to take reasonable care to avoid foreseeable harm to others.
Q: What is the Neighbour Principle?
A: Established in Donoghue v Stevenson, it expanded duty of care to people with no contractual relationship, meaning manufacturers owe a duty of care to end consumers.
Q: How was the principle of Economic Loss established in negligence law?
A: Initially, only physical damage claims were allowed, but Hedley Byrne v Heller allowed claims for financial loss if a “special relationship” existed.
Q: What are the Duty of Care tests from The Nicholas H case?
A: To establish duty of care, consider:
1. Was the damage foreseeable?
2. Is there sufficient proximity between parties?
3. Is it fair and reasonable to impose a duty of care?
4. Are there public policy reasons against a duty of care?
Q: How is a breach of duty of care determined?
A: The claimant must show that the duty of care was breached by the defendant.
Q: What is Res Ipsa Loquitur?
A: It’s a principle where harm itself implies negligence, shifting the burden of proof to the defendant if:
• The defendant had exclusive control over the cause of the harm.
• The incident would not normally happen without negligence.
• The claimant did not contribute to the accident.
Q: What standard of care is expected in negligence cases?
A: The “reasonable person” standard, meaning a professional must show the care expected in their field, regardless of experience or training level.
Q: What factors influence the standard of care?
A: Factors include:
• Professional body of opinion.
• Risk versus benefit of actions.
• Emergencies.
• Vulnerability of the claimant.
Q: What must the claimant prove regarding loss caused by the breach?
A: The claimant must prove that loss or damage was directly caused by the breach.
Q: What types of losses are recoverable in negligence cases?
A: Recoverable losses include:
• Personal injury-related losses.
• Property damage.
• Financial losses directly tied to personal injury (e.g., lost wages).
• Pure financial loss is rarely recoverable.
Q: What does “remoteness” mean in negligence cases?
A: Even if a breach caused loss, recovery may be denied if the loss is deemed “too remote” from the breach.
Q: Is there a distinction between liability from negligent misstatements and negligent acts in legal practice?
A: No, there is no distinction. A party can suffer damage from incorrect advice just as they could from negligent conduct, but negligent misstatements can have far-reaching consequences.
Q: What did Hedley Byrne v Heller (1963) establish in relation to negligent misstatements?
A: It established that a duty of care can arise from negligent misstatements causing economic loss if there is a “special relationship” between the parties.
Q: What must be present for a successful negligent misstatement claim?
A: A “special relationship” must be present, based on three factors:
1. The defendant is in the business of offering professional advice.
2. The advice was given in a business context.
3. The defendant knew or should have known that the claimant would rely on the advice.
Q: What happens if there is no special relationship in a negligent misstatement case?
A: No duty of care exists. For example, auditors generally owe a duty to shareholders as a whole, not individual bidders, unless they knew the statement would be relied upon.
