Negligence

Question 1

What are some aims of tort?

Answer 1

• provide compensation
• achieve or uphold justice
  -achieve uphold morality
• act as a deterrent
• distribute loss
• achieve policy aims
• uphold civil liberties and human rights
• fill gaps left by other areas of law

Question 2

Define negligence:

Answer 2

Failing to do something which the reasonable person would do or doing something which the reasonable person would not do

Question 3

How is Caparo V Dickman used to establish a duty of care?

Answer 3

It uses a three stage test to see if there was a duty of care.
1) Foreseeability
2) Proximity
3) Fair, just and reasonable

Question 4

How is Robinson used to establish a duty of care?

Answer 4

Where the duty of care has been established through precedent, courts should not rely on Caparo but use existing case law. This is used when there is no clear legal precedent.

Question 5

What are the three things that the court must consider before showing that there was a breach of their duty of care?

Answer 5

1. The standard of care expected
2. The foreseeability of harm
3. The degree of risk and the precautions taken

Question 6

What is the case study for the standard of care in breach of duty?

Answer 6

Blyth V Birmingham

Question 7

What does degree of risk mean?

Answer 7

How cautious the defendant ought to be and the precautions they took

Question 8

What is the case study for the degree of risk in breach of duty of care?

Answer 8

Latimer

Question 9

What is meant by foreseeability of harm?

Answer 9

Whether the risk of harm ought to have been known at the time. (Roe V Minister of Health)

Question 10

Name the two tests for causation in negligence:

Answer 10

1) ‘But for’ test
2) ‘Remoteness’ test

Question 11

How does the remoteness test work?

Answer 11

It explains the injury or damage must be reasonably foreseeable from the defendants original negligent act or omission.

Question 12

What is the case study for the remoteness test?

Answer 12

The Wagon Mound Case

Question 13

What does the thin skull rule mean?

Answer 13

You must take your victim as you find them

Question 14

What three things must the claimant show to rely on Res Ipsa Loquitur?

Answer 14

1. The defendant was in control
2. The accident would not have happened without negligence
3. There is no other reasonable explanation for what happened

Question 16

What is the case study for Res Ipsa Loquitur?

Answer 16

Scott V London

Question 17

What are the two defences to contributory negligence?

Answer 17

1. Contributory negligence
2. Volenti Non Fit Injuria (consent)

Question 18

Explain and give the case study for contributory negligence:

Answer 18

It is where a claimants damages may be reduced if they are found to have contributed to their own harm. (Sayers V Harlow).

Question 19

Explain and give a case study for the defence of consent:

Answer 19

It can act as a complete defence if the claimant has freely accepted the risk of harm. (Smith V Baker)

Question 20

Give two advantages for duty of care:

Answer 20

It encourages social responsibility through deterrence because it encourages organisations to see the potential impact in their actions and so they are less careless.

Caparo test adds structure and predictability which adds a clearly operated principle. This helps courts to deal with novel situations and provides clear guidance.

Question 21

Give 2 disadvantages of duty of care:

Answer 21

Vagueness of reasonableness creates legal uncertainty which is criticised for being an empty phrase. This vagueness undermines the clarity that should be present in a just legal system

‘Fair, just and reasonable’ needs a high level of judicial discretion which means that there is subjective judgements which may lead to inconsistencies and unpredictable outcomes.

Question 22

Give one advantage and disadvantage for breach of duty:

Answer 22

An advantage is that it is adjustable so it can reflect contextual realities, this means the courts can modify the standard of care based on the characteristics of the claimant.

But a disadvantage is that there is unfairness towards inexperienced defendants, such as in Nettleship V Weston, the test imposes the same standard on all adult defendants regardless of actual abilities.

Question 23

Give an advantage and disadvantage of causation:

Answer 23

An advantage is that it promotes fairness through a clear standard such as using the but for test, which is consistent and straightforward thinking. This ensures legal treatment is equal and promotes procedural fairness and predictability.

But a disadvantage is that the claimant relies heavily on proof, and if there is a situation where harm arises in a difficult situation or environment then it could be impossible for them to establish causation so the wrong compensation may be given out.