4) Negligence

What is a tort?
an act or omission by the defendant which is responsible for causing injury or damage to the claimant. The damage must normally be due to the fault of the defendant and it must be caused to an interest of the claimant that the law seeks to protect.
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What does the law deal with in regards to tort?
Deals with civil wrongs done to an individual. The law protects certain personal interests and where these are infringed the law may offer redress in the form of damages or injunctions.
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Does a previous transaction or contractual relationship need to exist to proceed with a tort?
No
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Can a tort overlap with criminal or contract law?
Yes
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What is limitation period (during which an injured party must take proceedings)?
6 years from a breach of contract or 6 years from the damage caused by the tortious act being suffered (3 years in the case of personal injury)
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To succeed in an action for negligence who is the burden of proof on?
The claimant
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To succeed in an action for negligence what must the claimant prove on a balance of probabilities (more likely than not)?
That a duty of care is owed to the claimant by the defendant and that there has been a breach of this duty of care (being that the defendant has failed t act reasonably, The breach must gave caused injury, damage or loss to the claimant
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What is the neighbourhood principal?
The House of Lords laid down a principal that every person owes a duty of care to their neighbour - to a person so closely and directly affected by their act that they ought to have them in contemplation as being so affected.
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Why had it previously been ruled that a person did not owe a duty if care to another with whom they had no contractual relationship?
As it was thought it would undermine the doctrine of privity of contract.
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What is need to found an action in negligence where the claimant suffered pure economic loss arising out of negligent misstatement?
A special relationship. Pure economic or financial loss (in the absence of physical damage) used not to be recoverable unless there was a liability in contract or evidence of fraud or deceit
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When is a duty of care owed?
If the damage is reasonably foreseeable by the defendant at the time, if there was sufficient proximity between the parties, if its fair, just & reasonable that the law should impose a duty of care & theres no public policy that require no duty exist
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Who must prove that a breach of duty of care occurred?
The claimant must
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How does the claimant prove that a breach of duty of care occurred?
Its a question of fact they must prove that the defendant failed to act reasonably
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In an action of negligence what is the standard of care by an individual?
That of a reasonable man guided on those considerations on which ordinarily regulate the conduct of human affairs.
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In an action of negligence, what principles in regard to whether a duty of care has been breached have been established by case law?
Particular skill (eg reasonable accountant), Disability is irrelevant (trainee), No hindsight, Body of reasonable professional opinion, Advantage risk balance, Emergency situation, If person is known to be vulnerable higher standard of care required.
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What is res ipsa loquitur?
The facts speak for themselves. In such cases, it will then be for the defendant to prove that the cause of the injury was not their negligence.
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When can res ipsa loquitur be used?
In circumstances where the reason for damage is not known but it can be said that it would not have occurred without defendant's lack of care, the claimant can argue res ipsa loquitur and the court will infer that the defendant was in breach of care
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It will be necessary for the claimant to show when arguing res ipsa loquitur?
that the thing which caused the damage was under the management and control of the defendant
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Who must prove that there were losses as a result of the breach?
The claimant
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When will a person be compensated in negligence claim?
if they have suffered actual loss, injury, damage or harm as a consequence of other's actions. Loss is represented by personal injury, damage to property or financial loss directly related to such injury (ie loss of earnings) or property damage.
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Why are courts reluctant to permit recovery of pure economic loss?
Due to difficulties insuring against liability and the floodgates it would open.
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In a claim for negligence when is the defendant liable?
The question is would the damage occurred but for the defendants act. If it ca be shown that actually the damage was caused by something else then there's no liability on the defendant.
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In a claim for negligence what happens if something happened after the defendants breach that caused or contributed damage?
Then the defendants liability will cease at that point.
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Even where the claimant is able to show that the loss was suffered as a result of the defendant's breach of duty can the court not allow them to recover for loss?
Yes, if its considered too remote, or too far down the chain of causation
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In a claim for negligence what are the remedies?
Injunction (rare) and damages
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What are damages for negligence?
They are compensatory so put the claimant in the same position they have been in had they not suffered any loss. The claimant must prove the losses were reasonable foreseeable and so were not too remote (type of damage must be foreseeable not extent)
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When a person commits a tort with the intention of causing loss or harm can the loss ever be too remote?
No
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When is a special relationship said to exist (thus a duty of care is owed)?
When a client requires a professional opinion which is given in a professional capacity and the client relies on that opinion and it is deemed reasonable to do so and then the client suffers economic loss as a result of reliance upon this opinion.
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What happens when advice is given informally or at a social occasion?
No special relationship exits
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Who is an auditors duty of care owed to?
to the body of shareholders as a whole an does not extent to potential investors nor to existing share holders increasing their stakes.
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What is the reason for annual accounts?
is to enable shareholders to exercise their rights in respect of the management of the company, not to give advice on the merits of further investment.
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When would it be wrong to impose a duty of care on an auditor?
If the recipient of the accounts used them for a purpose for which they were not intended without the auditors prior knowledge or if someone makes a decision based on draft accounts drawn up for someone else.
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When can a third party be owed a duty of care by an auditor?
When the auditors know the third parties identity and that they intend to rely on the information.
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Example of when a third party can be owed a duty of care by an auditor?
RBS was entitled to monthly management accounts and audited financial statements as part of a lending agreement. The auditors knew their identity, the use for the information and that they intended to rely on it
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When does an auditor own a duty of care in reference to a take over situation?
An auditor owes a duty of care to a bidder when the bidder has been identified and they have been expressly informed that the bidder will rely on those accounts for determining their bid price. It must be shown the bidder did rely on them.
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Factors to consider when determining if a duty of care exists?
1) Relationship between parties, 2) Knowledge of parties, 3) Purpose of advice, 4) Extent of reliance on advice 5) Know that it would be relied upon? 6) Assumption of responsibility 7) Fair & equitable, 8) Size of class to which the claimant belongs
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What is vicarious liability?
a legal doctrine under which one person can be held legally responsible and liable for the tortious act.It's a legal liability imposed on a person even though they are free from blame.
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Why can a person be vicarious liability if their employee or agent commits a tort?
The doctrine has the advantage of providing an innocent tort victim with the recourse against a financially responsible defendant. (an employee is likely to have a greater ability to pay and can eve insure for it)>
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When is an employer vicarious liable?
The wrongdoer must be an employee and not an independent contractor and the employee must have been acting in the course of employment.
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When is a principal vicarious liable?
A principal vicarious liable for a tort committed by an agent acting with in the limits of their authority and carrying out acts which they were appointed as agent.
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When is a partner vicarious liable?
A partnership is liable for any wrongful act or omission of any partner acting in the ordinary course of the business of the firm or with the authority of their co-partners which causes loss or injury to another person
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What are the defences against successful actions in negligence? They can be used to avoid, reduce or limit liability.
Contributory negligence, volenti non fit injuria and exclusion clauses
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What is contributory negligence?
Where the defendant can show that the damage or loss suffered was partly due to the claimant's fault, the claimant's damages will be reduced by the court in proportion to their degree of fault.
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When does volenti non fit injuria (to a willing person no injury is done) apply?
where the claimant voluntarily agrees to undertake the legal risk or loss or damage at their own risk. Just being aware of the risk or consenting to run risk isn't sufficient, they must exempt the defendant from duty of care so accept no legal redres
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Will volenti non fit injuria override UCTA?
No
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Will the exclusion clauses override UCTA?
No, death or personal injury - VOID, other damage - VOID UNLESS REASONABLE
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Other cards in this set

Card 2

Front

What does the law deal with in regards to tort?

Back

Deals with civil wrongs done to an individual. The law protects certain personal interests and where these are infringed the law may offer redress in the form of damages or injunctions.

Card 3

Front

Does a previous transaction or contractual relationship need to exist to proceed with a tort?

Back

Preview of the front of card 3

Card 4

Front

Can a tort overlap with criminal or contract law?

Back

Preview of the front of card 4

Card 5

Front

What is limitation period (during which an injured party must take proceedings)?

Back

Preview of the front of card 5
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