Unit 1 - Part 1: Introduction to Tort and Part 2: Negligence: duty of care 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?
Doctor and patient
Driver and other road users
Driver and passenger
Parent and child
Teacher and pupil
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
the statement is 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
Tony’s first e-mail is a counter offer. This has the effect of destroying Kamla’s offer which can no longer be accepted. The authority for this is the case of Hyde v Wrench (1840).
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 act.
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 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.
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.
Answer 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.
Correct answer
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.
Correct answer
D. Learner drivers are expected to exercise the same standard of care as experienced drivers.
Correct answer
E. Doctors can escape liability if they can show there is an established body of medical opinion that would approve of that practice.
Congratulations - you are correct. 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.
FALSE:
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.
What are the aims of TORT
One fundamental aim of tort law is to protect people from injury and to compensate them when they suffer harm. The general idea behind tort law is indeed ‘Don’t harm other people
To confirm individual rights and so to prevent people seeking private revenge.
To ensure that those responsible for doing harm are made to pay.
To encourage people to be more careful.
To deter people from behaving in a way that would harm others
To strike a fair balance between the claimant and the defendant
To be sufficiently clear and yet sufficiently flexible
To be economically efficient
What are the questions a lawyer must always ask to analyse a tort action?
Who has been harmed?
Who is or are the appropriate defendants?
What is the nature of the harm?
What is the relevant tort?
Sometimes the claimant will need to show that the defendant behaved intentionally; sometimes that the defendant was at fault in being negligent.
Once the relevant tort is identified there will be further questions to consider:
What elements of the tort must the claimant prove?
What defences can the defendant raise?
What remedies will the claimant obtain if successful?
All these questions will be relevant in a tort case. Keep these questions in mind and have a look at the following pdf document. Select the document to open it and read through some examples of how a lawyer might analyse a tort case.
