Unit 2

Question 1

Do you look at the act or the actor when determining the standard of care?

Answer 1

The ACT.

Question 2

What is the resonable person test?

Answer 2

How would a reasonable person have performed the act – objective and impersonal.

Did the defendant come up to the standard of the reasonable person?

Question 3

What standard should a learner driver have?

Answer 3

A reasonably competent driver (except where they suffer a sudden and unexpected disability).

Question 4

What standard should a newly qualified doctor have?

Answer 4

A competent doctor.

Question 5

What are the special standards of care?

Answer 5

1) Skilled defendant

2) Children

Question 6

Whats standard of care is required of a skilled defendant?

Answer 6

Skilled D must meet the required standards as set out by their profession.

– The degree or competence expected from someone who has that skill.

Question 7

By undertaking a task which requires a particular skill / professional skill, does the defendant hold themselves out as having the necessary expertise to perform that task?

Answer 7

Yes.

Question 8

If the defendant were supported by a reasonable body of professionals, would they be negligent?

Answer 8

No.

Question 9

Do courts have ultimate discretion on whether or not a behaviour was reasonable?

Answer 9

Yes.

Question 10

How is the standard of care measured for children?

Answer 10

Adjusted to their age.

Question 11

Can common industry practice still be negligent?

Answer 11

Yes.

Question 12

What is the standard in emergencies?

Answer 12

A lower standard is applied where life is at risk or there is sudden incapacity of defendant.

Question 13

What factors will the court conisder when determining breach of duty?

Answer 13

1) Seriousness of potential harm

2) magnitude of risk

3) Social benefit

4) levels of precautions taken

5) Practicality of taking precautions

Question 14

What is Res Ipsa Loquitir?

Answer 14

When the Claimant has no evidence the court will draw an inference of negligence against the defendant without hearing detailed evidence of what the defendant did or did not do.

Question 15

What are the 3 conditions of res ipsa loquitir?

Answer 15

1. The thing causing the damage must be under control of the defendant or someone for whom the defendant is responsible.
2. The accident must be such as would not normally happen without negligence.
3. 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.

Question 16

What is the effect of res ipsa loquitir?

Answer 16

Prima facie inference of negligence against the defendant. D then has to provide a reasonable explanation of how the accident occured without this negligence.

Question 17

How can a defendant discharge the prima facie inference of negligence of res ipsa loquitir?

Answer 17

D can do this by explaining:
1. how the accident actually happened and that this was not due to negligence on their part; or
2. if they cannot show how the accident actually happened, that they had at all times used all reasonable care.

Question 18

How does the civil evidence act 1968 work (section 11)?

Answer 18

A defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence.

Question 19

What is factual causation?

Answer 19

the but for test – But for D’s actions/omission, would the claimant have suffered the damage anyway?

YES – There will be no actionable negligence.

NO – D’s act was the factual cause of the claimant’s damage.

Question 20

What is the material contribution to harm approach?

Answer 20

For cases of multiple contributing causes, the claimant can show legal causation if the defendant’s negligence materially contributed to the claimant’s risk of harm. Must be reasonably substantial.

Question 21

What is the material contribution to risk of harm approach?

Answer 21

In cases of scientific uncertainty, if the defendant’s behaviour materially increased the risk of harm, they have legal causation.

Question 22

How are damages apportioned in cases where the damage is caused by multiple defendants and the injury is divisible?

Answer 22

Where an injury is caused by multiple defendants, each defendant will be liable to pay/compensate in proportion to the damage they caused. This is where the injury can be divided up.

The damages will be apportioned between the liable tortfeasors, in proportion to the damage they caused.

Question 23

How are damages apportioned in cases where the damage is caused by multiple defendants and the injury is indivisible?

Answer 23

Contribution between tortfeasors under the Civil Liability (Contribution) Act 1978.

The claimant can bring an action against any one of the defendants whilst also seeking a just and equitable contribution for the other defendant(s).

Question 24

What is legal causation?

Answer 24

Legal causation is established where there has been no intervening act which breaks the chain of causation.

Question 25

Will an instinctive natural response break the chain of causation?

Answer 25

No.

Question 26

Will a negligent act of a third party that is foreseeable break the chain?

Answer 26

No.

Question 27

Will a deliberate act of a third party which was foreseeable, and D was responsible for their behaviour break the chain?

Answer 27

No.

Question 28

Will the claimant’s behaviour break the chain of causation if it is unreasonable?

Answer 28

Yes.

Question 29

Will medical treatment break the chain of causation?

Answer 29

No. Unless it was grossly negligent, amounting to a completely inappropriate reaction to the claimant’s injury.

Question 30

Does suicide break the chain of causation?

Answer 30

Generally, no.

Question 31

What is the wagon mound (no.1) rule?

Answer 31

The test for remoteness. A claimant can recover all damage that would have been foreseeable.

– Court asks is the damage of such a kind that the reasonable person wouldv’e foreseen it? If YES – claimant can recover for all damages foreseeable. If NO – damage which wouldnt have been foreseeable cannot be recovered.

Question 32

What are the two conditions to Wagon Mound Rule (no.1)?

Answer 32

1. The similar in type rule
2. The eggshell skull rule

Question 33

What is the similar in type rule?

Answer 33

A defendant will only be liable if the particular kind of damage was reasonably foreseeable. There is no need to foresee the exact method by which the damage occurs.

– As long as the type of damage is foreseeable, even if the chances of it happening are minimal, compensation can still be recovered.

Question 34

What is the extent of damage that can be recovered under the similar in type rule?

Answer 34

Once it is established that the claimant has suffered damage of the same kind as that which is reasonably foreseeable, then the defendant is liable for the full extent of the damage, even if the extent of the actual damage suffered is excessive

Question 35

What is the eggshell skull rule?

Answer 35

The defendant must take the claimant as he finds him. It doesn’t matter that the claimant has a particular condition which aggravates the damage.

This also applies to types of clothing/accessories.

Question 36

What are the requirements of the general defence of consent / volenti?

Answer 36

1. Full knowledge of the nature and extent of risk; and
2. Voluntary decision – consent must be freely given.

Question 37

Can volenti/consent be used in road traffic acts?

Answer 37

No.

Question 38

How does illegality as a defence work?

Answer 38

No action may be based on an illegal cause.

A complete defence.

The injury must have been directly caused by the illegal act.

Question 39

What are the 3 elements of contributory negligence?

Answer 39

1. The claimant was acting negligently.
2. Claimant’s actions contributed to the damage suffered.
3. The claimant’s damages should be reduced.

Question 40

Does contributory negligence apply to emergency situations?

Answer 40

No.

Question 41

Examples of claimant’s actions which contribute to damage suffered ..

Answer 41

– Not wearing a seatbelt

– Not wearing a helmet

– Accepting a ride with a drunk driver.

Question 42

What is the likely reduction for failure to wear a seatbelt?

Answer 42

25%

Question 43

How are reductions calculated?

Answer 43

The court will calculate how much the defendant would’ve owed if the claimant had not contributed to the damage, and then make an appropriate reduction in proportion with the claimant’s responsibility for the damage

Question 44

For a claimant to be contributory negligent, does the claimant need to have contributed to the actual loss suffered or the accident itself?

Answer 44

Loss suffered. Relevant question is who caused the damage.

Question 45

How does contributory negligence work for negligent parents of children claimants?

Answer 45

• Where the parents of a child claimant have acted negligently, a child’s claim for damages cannot be reduced by the parent’s negligence. They remain unconnected.
• However, if a parent contributed to the child’s damages, the defendant can claim the parent is also liable for the child’s damages and could seek a contribution under Civil Liability (Contribution) Act 1978.

Question 46

Does contirbutory negliegnce apply to rescuers?

Answer 46

• Only if a rescuer has shown a ‘wholly unreasonable disregard for their own safety’ is there likely to be a finding of contributory negligence