04. Law of Tort, Negligence.

Question 1

A tort is a (civil / criminal) act.

Answer 1

civil

Question 2

The main tort against property is …

Answer 2

trespass

Question 3

Tort is different from contract in that …

Answer 3

a previous relationship is not required in order for an action to succeed.

Question 4

Damages awarded under Tort are intended …

Answer 4

to put the claimant in the position they would have been had the tortious act not taken place.

Question 5

The limitation period for a claim in tort for a case of personal injury is …

Answer 5

3 years

Question 6

The limitation period for a claim in tort for a case OTHER THAN personal injury is …

Answer 6

6 years

Question 7

T/F: contractual duty also implies that a duty of care exists in tort.

Answer 7

FALSE

see Robinson v Jones

Question 8

A contractual duty, including one regarding the quality of chimney flues …

Answer 8

does NOT also imply that a duty of care exists in tort

Question 9

Bad professional advice can lead to liability in both …

Answer 9

tort and contract

Question 10

Damage not resulting from a tortious act will be deemed too … for a claim to succeed.

Answer 10

remote.

Question 11

The standard of proof in a negligence case is …

Answer 11

on the balance of probabilities.

Question 12

A person in breach of a legal duty of care is guilty of …

Answer 12

negligence

Question 13

Negligence is the breach of a legal …

Answer 13

duty of care

Question 14

To establish negligence: E*, B, L

Answer 14

a duty of care exists

Question 15

To establish negligence: E, B*, L

Answer 15

an established duty of care was breached by the defendant

Question 16

To establish negligence: E, B, L*

Answer 16

loss was suffered by the claimant as a result of the breach by the defendant of an established duty of care

Question 17

The landmark case in which the ‘proximity’ test was established in regard to the existence of a duty of care.

Answer 17

Donghue v Stevenson (1932)

Question 18

The existence of a duty of care will be determined with regard to the … between the parties in the context of the damage suffered.

Answer 18

relationship

Question 19

The existence of a duty of care will be determined with regard to the relationship between the parties in the context of the … suffered.

Answer 19

damage

Question 20

‘Nicholas H’ tests: R*, P, F, P

Answer 20

Was the damage REASONABLY FORSEEABLE forseeable at the time of the negligent act or omission?

Question 21

‘Nicholas H’ tests: R, P*, F, P

Answer 21

Is there sufficient PROXIMITY, or neighbourhood between the parties?

Question 22

‘Nicholas H’ tests: R, P, F*, P

Answer 22

Is it FAIR, just and reasonable that a duty of care should be deemed to exist?

Question 23

‘Nicholas H’ tests: R, P, F, P*

Answer 23

Is there a matter of PUBLIC POLICY that deems that no duty of care should exist?

Question 24

In a case where it can be fairly said that damage would not have occurred without the defendant’s lack of care, the claimant can argue …

Answer 24

res ipsa loquitur

Question 25

If ‘res ipsa loquitor’ is successfully argued, the defendant must prove …

Answer 25

that their act or omission was NOT the cause of the injury.

Question 26

Principles of establishing breach:

PS*, LoS, NH, PO, AaR, E, V

Answer 26

The PARTICULAR SKILL that the defendant professes.

Question 27

Principles of establishing breach:

PS, LoS*, NH, PO, AaR, E, V

Answer 27

LACK OF SKILL or experience is not relevant, for example a learner driver is expected to behave as a reasonable driver would.

Question 28

Principles of establishing breach:

PS, LoS, NH*, PO, AaR, E, V

Answer 28

NO HINDSIGHT. Later developments can not therefore be used to establish a breach occurred.

Question 29

Principles of establishing breach:

PS, LoS, NH, PO*, AaR, E, V

Answer 29

Compliance with PROFESSIONAL OPINION and practice prevailing at the time will normally be sufficient to defend an alleged breach.

Question 30

Principles of establishing breach:

PS, LoS, NH, PO, AaR*, E, V

Answer 30

A balance must be struck between ADVANTAGE and RISK.

Question 31

Principles of establishing breach:

PS, LoS, NH, PO, AaR, E*, V

Answer 31

Was the situation an EMERGENCY?

Question 32

Principles of establishing breach:

PS, LoS, NH, PO, AaR, E, V*

Answer 32

Did the claimant possess a particular VULNERABILITY of which the defendand was or ought to have been aware?

Question 33

Duty of Care: F* P F P, S P I V

Answer 33

Reasonably FORSEEABLE.

Question 34

Duty of Care: F P* F P, S P I V

Answer 34

PROXIMITY

Question 35

Duty of Care: F P F* P, S P I V

Answer 35

FAIR, just and resonable.

Question 36

Duty of Care: F P F P*, S P I V

Answer 36

PUBLIC POLICY.

Question 37

Duty of Care: F P F P, S* P I V

Answer 37

SKILL, reasonable given relationship and act.

Question 38

Duty of Care: F P F P, S P* I V

Answer 38

PROFESSIONAL opinion, knowledge and practice, excluding hindsight.

Question 39

Duty of Care: F P F P, S P I* V

Answer 39

IMMEDIACY and emergency situations - courts likely to be less inclined to deem that a breach has occurred.

Question 40

Duty of Care: F P F P, S P I V*

Answer 40

VULNERABILITY of which the defendant was or ought to have been aware - increases the standard of care required.

Question 41

The remoteness of damage is often determined using the … test.

Answer 41

‘but for’

Question 42

Showing that damage is too remote for a claim to succeed is often known as breaking the …

Answer 42

chain of causation

Question 43

General loss of profits, including those resulting from the interruption of an electricity supply …

Answer 43

will often be deemed to be too remote.

Question 44

In situations where it is just and equitable that the ‘but for’ test is relaxed, the court may apply the ‘…’ test.

Answer 44

materially increasing risk

see Fairchild v Glenhaven (asbestos)

Question 45

The ‘materially increasing risk’ test usually only applies in cases of …

Answer 45

medical negligence or death/personal injury

Question 46

T/F: ‘res ipsa loquitor’ is applied where the cause of damage is not known but it would not have arisen without the defendant’s lack of care.

Answer 46

TRUE

Question 47

In order for ‘res ipsa loquitor’ to apply the thing causing the damage must be under the … of the defendant.

Answer 47

management and control