Tort

Question 1

Types of duty to care (2)

Answer 1

1. Established
2. Novel

Question 2

Criteria for establishing novel duty to care

Answer 2

1. Foreseeabiliy
2. Proximity
3. Fair, just and reasonable

Question 3

What are the exceptions to lack of a general duty to act?

Answer 3

1. Special relationship (parent-child)
2. Control (police-arrested person)
3. Actions of third parties under the defendant’s control or responsibility (parents over children)
4. Rescue situations (i.e., not to make the situation any worse)

Question 4

What is the standard for establishing a breach of duty to care?

Answer 4

Reasonable care (i.e., care expected from a reasonable person in the defendant’s position; the test is objective and impersonal)

Question 5

What is the standard for establishing a breach of duty to care for skilled professionals?

Answer 5

Whether the defendant acted in accordance with a responsible body or professional opinion.

Question 6

What is the standard for establishing a breach of duty to care for children?

Answer 6

A reasonable child of the same age.

Question 7

What are the criteria for the assessment whether the defendant’s conduct fell below a reasonable standard of care?

Answer 7

Magnitude of the risk: [1] likelihood of harm and [2] seriousness of potential harm (i.e., how likely and how serious)

vs.

Practicability of precautions

vs.

Social utility

Question 8

Res Ipsa Loquitur

Answer 8

1. There is an absence of any explanation of how the incident happened.
2. The ‘thing’ that caused the accident must have been under the control of the defendant.
3. The accident must be such as would not normally happen if proper care had been taken.

Question 9

What is the test for establishing “causation in fact”?

Answer 9

‘But for’ (the defendant’s breach of duty).

Question 10

What is the standard of proof for the “but for” test?

Answer 10

Balance of probabilities (i.e., more likely than not).

Question 11

What is the standard for determining whether an intervening act will break the chain of causation?

Answer 11

Whether the act was reasonably foreseeable.

Question 12

When can the claimant’s own act break the chain of causation?

Answer 12

When the claimant has acted entirely unreasonably.

Question 13

Can a natural event break the chain of causation?

Answer 13

Yes.

Question 14

Why “remoteness of damage” is being assessed in the context of causation?

Answer 14

The defendant will not be liable if the damage is too remote a consequence of the defendant’s act.

Question 15

What is the standard for determining remoteness of damage?

Answer 15

Reasonable foreseeability

Question 16

What are the exceptions to the standard of reasonable foreseeablity for remoteness of damage?

Answer 16

1. Egg shell skull rule (“the defendant must take their victim as they find them”).
2. Similar in type (the type of harm is reasonably foreseeable, but the manner in which it occurs is unforeseeable).

Question 17

Defences to negligence

Answer 17

1. Contributory negligence
2. Voluntary assumption of risk
3. Excusion of liability
4. Illegality

Question 18

Pure economic loss (3)

Answer 18

1. Damage to property which does not belong to the claimant;
2. The cost of damage suffered by a defective product which is acquired by the claimant;
3. Financial loss which does not flow from damage to the claimant’s person or property.

Question 19

Is pure economic loss recoverable in an action in negligence?

Answer 19

Generally no.
Exception: pure economic loss cause by negligent statements may be recoverable when there is a special relationship between defendant and claimant.

Question 20

What’s consequential economic loss?

Answer 20

Financial loss which flows from physical damage cause to the claimant or to the claimant’s property.

Question 21

Conditions for “special relationship” in the context of pure economic loss (4)