Chapter 2 - Tort

Question 1

What are the examples of Torts?

Answer 1

Negligence
Nuisance
Trespass
Defamation
Trespass to a person

Question 2

What must you prove in order to bring a claim for negligence?

Answer 2

1. Owed a duty of care
2. Breached the duty of care
3. Caused the breach.

Question 3

In what situations is a duty of care “a given”?

Answer 3

Road users to one another, doctors and nurses to patients and employers to their employees.

Question 4

If a duty of care is not “a given” what test is used?

Answer 4

Caparo test.
1. Was the harm reasonably foreseeable?
2. Was there proximity between the parties? (Legal or physical)
3. Is it fair, just and reasonable to impose a duty of care?

Question 5

How does the court asses whether the defendant breached the duty of care?

Answer 5

The standard of care that should have been achieved (question of law) and whether the standard was met (question of fact).

Question 6

What factors will the court take into account when assessing the standard of care?

Answer 6

1. The reasonable foreseeability
2. The vulnerability of the claimant
3. The defendants objective when the tort occurred.
4. The costs of avoiding the harm - what lengths did the defendant go to protect the risk?

Question 7

What is factual causation?

Answer 7

The direct link between the defendants act and the damage suffered by the claimant.

Question 8

What are the tests for factual causation?

Answer 8

1. But for test.
2. Material increase.
3. Material contribution.

Question 9

How can factual causation be broken?

Answer 9

An intervening act of a third party or an act of the claimant.

Question 10

What is legal causation?

Answer 10

It’s the moral question. Should the defendant be liable?

The damage cannot be too remote from the negligence.

Question 11

What is the thin skill rule?

Answer 11

The defendant must take his victim as he finds him.

Question 12

What is vicarious liability?

Answer 12

Imposes liability on one party for the acts of another. E.g an employer accepting liability for the act of an employee.

Question 13

What are the complete defences in tort?

Answer 13

Volenti, ex-Turpi and limitation.

Question 14

What are the partial defences in tort?

Answer 14

Contributory negligence and exclusion clauses.

Question 15

What are the damages available in tort?

Answer 15

1.Pecuniary (money) and non-pecuniary (non money)
2. Special damages (quantifiable)
3. General (non-quantifiable)