Unit 1: Intro and Negligence: duty of care and breach of duty

Question 1

Tort

Answer 1

Essentially means ‘wrong’. A tort involves the infringement of a legal right and it gives rise to a claim in the civil courts. Based upon affording specific protections for particular types of harm.

Question 2

Tort distinguished from crime

Answer 2

Tort claims are brought by the injured person who will be seeking a remedy to compensate them. Criminal actions are brought by a public official rather than the victim. Tort -> civil courts. Crime -> criminal courts.

Question 3

Tort distinguished from contract

Answer 3

In tort, liability does not depend on any consensus between the parties; it is determined by rules which dictate whether the defendant’s wrongdoing constitutes a tort. Tort has a wider potential scope of liability - owed to the world at large.

Question 4

Functions of the law of tort

Answer 4

Compensation, deterrence, justice, vindication of rights.

Question 5

Issues with claiming compensation

Answer 5

Time commitment, high cost for litigation, and can the defendant even afford to compensate?

Question 6

Legal redress

Answer 6

Money that someone pays you because they have caused you harm or loss.

Question 7

Standard of proof in civil cases

Answer 7

On the balance of probabilities.

Question 8

Why is the standard of proof different in civil cases to criminal cases?

Answer 8

Mainly because in criminal cases a defendant risks losing their liberty if found guilty, but in a civil case the defendant will usually only face a financial penalty.

Question 9

Limitation period in tort law

Answer 9

Generally 6 years from when the cause of action arises, though there are special cases. Limitation Act 1980.

Question 10

Structured approach for analysing negligence problems

Answer 10

1. Identify all the possible claimants and defendants
2. Identify the nature of each C’s loss
3. Consider which tort(s) may be relevant
4. Apply the elements of the relevant tort.

Question 11

Negligence

Answer 11

A breach of a legal duty of care owed to the claimant that results in harm to the claimant, undesired by the defendant.

Question 12

Public services duty of care

Answer 12

See image.

Question 13

The four hurdles for negligence claims

Answer 13

1. Duty (Does the defendant owe the claimant a legal duty to take care?)
2. Breach (Is the defendant legally at fault by not meeting the standard of care expected of them?)
3. Causation (Did the breach cause the claimant’s loss?)
4. Defences (Can the defendant rely on any defences?).

Question 14

When does Caparo apply

Answer 14

These three elements need to be established:
1. Reasonable foresight of harm
2. Proximity of relationship
3. Fair, just and reasonable to impose a duty. (possible policy implications? eg discouraging volunteers)

Question 15

Misfeasance

Answer 15

Doing something to cause harm/wrongdoing.

Question 16

Nonfeasance

Answer 16

Not doing something or failing to act, and this failure to act has caused harm/wrongdoing.

Question 17

Who is required to prove breach of duty?

Answer 17

The burden of proof is on the claimant to prove breach of duty.

Question 18

Res ipsa loquitur

Answer 18

• The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible
• The accident must be such as would not normally happen without negligence
• The cause of the accident is unknown to the claimant - so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care
  Scott v London and St Katherine Docks Co (1865)\

Question 19

Factors in determining standard of care

Answer 19

• How much risk did the activity involve how should the defendant have responded to that risk?
• How easy would it be to take precautions, and what would the cost be?
• How likely was it to cause an injury, and how serious would it be?

Question 20

Current state of knowledge

Answer 20

Look at the knowledge when the accident occurred, not current knowledge when the case is being heard, as in Roe v Ministry of Health [1954].