Unit 1

Question 1

What is the definition of general negligence?

Answer 1

The breach of a legal duty to take care which results in damage, undesired by the defendant to the claimant.

Question 2

In tort, what is the burden and standard of proof?

Answer 2

– Burden on claimant
– Standard on balance of probabilities

Question 3

Is there liability for a omission in tort?

Answer 3

No.

Question 4

What is the limitation period in tort?

Answer 4

6 years from the cause of action.

Question 5

When is the caparo test used?

Answer 5

When there is no established duty of care or concerns a problem category.

Question 6

What is the caparo test?

Answer 6

1. Foreseeability – the damage must have been reasonably foreseeable
2. Proximity – There must be sufficient proximity between D and the claimant
3. Fair, just and reasonable to impose a duty

Question 7

For 1. Reasonable foreseeability in the caparo test, what test do the courts impose?

Answer 7

The objective, reasonable person test.

You do not need to foresee that loss would be suffered by the particular victim in question. Instead, only the particular type of loss that has occurred needs to be reasonably foreseeable.

Question 8

What are the situations which give rise to sufficient proximity under Caparo?

Answer 8

1. Control over the defendant/claimant
2. Assumption of responsibility of the claimant / defendant
3. Creation of a dangerous situation
4. Special relationship / pre-existing contractual relationship

Question 9

Are non-profits and charities likely to pass the ‘fair, just and reasonable’ part of Caparo?

Answer 9

No. Courts reluctant to impose duties on non-profits.

Question 10

What is the general rule on omissions?

Answer 10

An individual will not be negligent for failing to act including failing to prevent third parties from causing harm.

Question 11

What are the exceptions for the general rule on omissions?

Answer 11

1) Imposed by statutor duty
2) Imposed by contractual duty
3) Where D has a high degree of control over the claimant
4) Where D chooses to take on responsibility
5) Where the risk is created by D
6) D failed to prevent a third party from causing harm and there is proximity between D and claimant and there is proximity between third party and D
7) D created the danger

Question 12

Are public bodies subject to a general exclusionary rule?

Answer 12

Yes. Duty of care not likely to arise in most cases where their actions are not direct, do not cause an easily recognised harm or do not make a situation worse.

Question 13

When do the police owe a duty of care?

Answer 13

1) property damage or personal injury by direct and positive negligent action

Question 14

What is the difference between policy and operational matters with regards to the police?

Answer 14

Operational Matters
* Things which happen as a result of the way the police does its job.
* Generally, police can be held liable for operational matters.

Policy Matters
* Decisions about resource allocation, investigations, case prioritisation etc.
* Police cannot generally be held liable for anything in relation to these policy matters.

Question 15

Does the duty of care to informers of police extend to economic loss?

Answer 15

No. Wellbeing and safety only.

Question 16

Is the assumption of responsibility by the police important in establishing a duty of care?

Answer 16

Yes.

Question 17

Where there is a known potential harm and the risk of harm is foreseeable, and the police has assumed responsibility for an individual, do they owe them a duty of care?

Answer 17

Yes.