Law of Tort Answer plan: Negligence - causation & remoteness of damage

Transcription

1 THE LAW STUDENT S COMPANION Law f Trt Answer plan: Negligence - causatin & remteness f damage This answer plan is made freely available fr nn-cmmercial use nly. Cpyright remains at all times with G.Vul and Law Student s Cmpanin. 5/4/2012 This answer plan cvers questins which fcus n causatin and remteness within the trt f negligence. Index LSC answer plans generally.. p.1 Questins n causatin and remteness and structure f this answer plan p.3 Negligence causatin & remteness f damage answer plan.p.5 Online tuitin n land law answer plans is available, individually r in grups, at r fr general tuitin in ther subjects, please visit

2 1 Law Student s Cmpanin answer plans generally Law Student s Cmpanin answer plans prvide users with a structure and the ptential legal issues that any questin n the particular tpic might raise. The plans are designed t prduce an answer t virtually any scenari-style questin n that tpic, easily and effectively. The plans will nt nly allw yu t rganise material in the right rder fr effective applicatin, but will als imprve r reinfrce yur understanding f the material itself. Even fr students nt yet familiar with the tpic, the plans prvide an initial, lgical framewrk n which t base yur wn studies. Issues, Rules, Applicatin It is n secret that yur bjective shuld be t prduce an answer which deals with issues, rules and applicatin, in a lgically-structured way. LSC answer plans enable yu t achieve this. Structured steps The tpic is brken dwn int numbered steps which prvide the framewrk fr a lgical, rdered answer. Where it is required, the user can prepare an explanatin r a statement f the general law applicable at each step. If preferred, tuitin is available n the creatin f cmplete answer plans, and n hw t use them t best effect, at Issues It is yur identificatin f the specific legal issues raised by the questin, and the way yu deal with them, which earn the bulk f yur marks. LSC answer plans prvide yu with the cmmn pssible issues that can arise, listed under the step t which they relate. T help yu recgnize them, the issues are generally described by the typical facts which raise them. Law ( Rules ) With the clear identificatin f individual pssible issues, the user can prepare a statement f the relevant law applicable in each case, ready fr use whenever that issue arises (r visit t have this dne fr yu see abve). Applicatin Applicatin f the law means, first and fremst, including nly that law which is relevant t the particular facts f yur questin, rather than just writing dwn everything yu knw. It is precisely this that LSC answer plans enable yu t achieve, by allwing accurate identificatin f the specific issues and law relevant t yur questin. All that remains is fr yu t cmment n hw the law that yu have stated applies n the facts f the questin. This may require, fr example, identifying evidence that the questin gives yu, r pinting ut facts that are therwise significant.

3 2 Flexibility Whether r nt there may be a mre elegant way f frmatting an answer in any given case, yu will nt have t spend valuable time and effrt in the exam wrking ut what it is. The standard frmat f answer plans allws yu t present a clear and structured answer which fcuses n the specific issues and law the things that earn the real credit. Any marks yu may sacrifice fr style will be mre than made up fr. Althugh the answer plans have been designed s that wrking thrugh the steps and issues in the given rder will result in a lgical analysis, yu may wish t alter them fr varius reasns. Fr example, in yur wn curse, the tpic may be brken up in a different way, r issues may be discussed under different headings. Yu may simply find a different rdering f material easier t remember r wrk with. Because LSC answer plans treat the issues as independent units within their apprpriate step, the cntent f the plans can easily be rerganized t suit yur particular preference. A further advantage f this independent treatment f issues is that, in the exam itself, if yu are running ut f time, yu can chse t abandn minr issues and deal with the majr, mark-rich nes first, even if ut f rder. Cverage and usability The answer plans aim t strike a balance between being, n the ne hand, cmprehensive and, n the ther, simple enugh and lgical enugh t remember and t use. Different curses r institutins smetimes require detail in sme aspects which thers d nt. Since it wuld be impssible t cater fr everyne withut the plans becming ver-lng and unusable, less cmmn issues have smetimes been mitted. If yu find that yu d need t insert extra material yurself, it shuld be quite clear in the answer plans where it shuld g. Students aiming fr the highest marks, in particular, will n dubt wish t expand n the answer plans with further case law and ther detail. Tuitin Online tuitin n land law answer plans is available, individually r in grups, at where yu will be shwn hw t create cmplete answer plans in all the usual land law tpics and hw t use them fr best effect. Fr general tuitin in ther subjects, please visit

4 3 Questins n causatin & remteness, and structure f answer plan Liability fr the trt f negligence always requires it t be prved that the defendant s negligent cnduct was the cause f damage, and that the damage was nt t remte. This answer plan cvers questins which fcus n causatin and remteness, but yu shuld be ready t deal with any ther f the elements f negligence als (cvered in a separate answer plan). Althugh this plan is divided int the three steps f factual causatin, legal causatin, and remteness, this structure is in n way prescriptive. Yu will find that different writers break up this area in a variety f ther ways. Fr example, sme issues which are dealt with here under the step f legal causatin may be discussed elsewhere as matters f remteness. Sme writers d nt have a separate step f legal causatin at all. Prvided a structure is lgical and cherent, they are all equally valid. Under the apprpriate step r sub-step, pssible issues which may arise are marked by bullet-pints and clured red. Sme issues may have further pssible sub-issues cnnected with them. These are marked by hllw bullet-pints and clured blue. Occasinally, there may even be pssible sub subissues (marked with a square bullet-pint and clured green). If yu are asked t advice mre than ne defendant, this answer plan is designed n the basis that yu will apply the steps t each defendant in turn.

5 4 LSC answer plan: law f trt negligence - causatin & remteness f damage Intrductry paragraph Explain simply that D s negligence must be a cause f damage which is nt t remte. Step 1 Factual causatin Explain that it must first be prved that D s negligence was a factual cause f the damage. Explain that, if this is nt the case, D cannt be liable fr that damage. Explain that, as a general rule, factual causatin will be established if but fr D s negligence the damage wuld nt have happened. Pssible issues The damage wuld have happened anyway because f a pre-existing factr Explain law applicable The damage wuld have happened anyway because f a subsequent factr Explain law applicable

6 5 D s cnduct is ne f multiple factrs and it cannt be prved which f them caused the damage Explain law applicable where factrs are cumulative Explain law generally applicable where factrs are all independent The independent factr was pssibly negligent Step 2 Legal causatin Explain that, even if factual causatin is prved, D cannt be liable fr the damage if there has been a nvus actus interveniens (a subsequent event sufficient t break the chain f causatin). Pssible issues Subsequent event in fact made n difference Explain law applicable Subsequent natural event / illness Explain law applicable Subsequent cnduct f a 3 rd party Explain law generally applicable

7 6 Criminal cnduct f 3 rd party Medical treatment by 3 rd party Rescue / assistance by 3 rd party D had cntrl ver the 3 rd party D had a respnsibility t C Subsequent cnduct f C himself Explain law generally applicable. Careless cnduct f C

8 7 Criminal cnduct f C Deliberate self-harm by C D had cntrl ver C Step 3 Remteness Explain that, even if causatin is prved, D will nt be legally respnsible if the damage was nt f a kind which was freseeable. Pssible issues The damage was bviusly f a freseeable kind, but was greater in extent Explain law generally applicable Extent unfreseeable because f C s special vulnerability

9 8 Extent unfreseeable because f C s financial situatin The damage was bviusly f a freseeable kind, but happened in an unfreseeable way The damage might be cnsidered t be f an unfreseeable kind Explain that the damage may be treated as unfreseeable nly in extent r manner (in which case it is nt t remte), r as damage f an unfreseeable kind (in which case it is t remte). Explain that the chice may depend n what achieves a fairer result. cpyright G.Vul & Law Student s Cmpanin 2012 Visit fr help with creating and using cmplete answer plans in all the usual land law tpics. Fr general tuitin in ther subjects, please visit