Flashcards
Intention and Negligence
Cards in this deck (30)
- 1How is the magnitude of risk determined?(a) the amount of seriousness of the expected loss
(b) the probability that the loss will occur - 2What else should be taken into account when assessing the seriousness of the damage?The specific circumstance, not just a blanket general rule for everyone
- 3How do you calculate the probability of harm?(i) the increase in the probability that someone will cause arm over the accepted risk level
(ii) probability of harmful event, not the ultimate damage
==> Empirical data can be used
==> Fantastic possibilities can be considered reasonable if damage is great - 4When should the victim's negligence be taken into account?When he:
- lacks sufficient knowledge of risk
- included to underestimate it
- impulsiveness
-carelessness
- habit
- lack of time
- lack of alternatives - 5How should the necessity of precautionary measures be assessed?By the cost, effort and time v level of risk (though risk to human life is considered very very high)
- 6In risk reduction what must be considered?The overall aim of the action/product/activity verses the risk
- 7When is there no duty to warn or inform?When someone is justified in believe that the potential victim knows about the risk, is aware of it, and is able to behave accordingly
- 8How should the duty to warn or inform be assessed?It should be proportional to the level of information required to reduce the risk (children should be shown through pictures, in a festival people should be told more thoroughly)
- 9Which French terms conveniently describe the line between omissions and actions when it is ambiguous?- Omission dans l'action
- Omission sans action - 10Which are the three affirmative duties under English law?- creation of risk
- special status
- responsibility for claimants welfare - 11In general, who can owe an affirmative duty?(a) a relationship with the place of accident
(b) a relationship with the moveable thing that caused the damage
(c) a relationship with the tortfeasor
(d) a relationship with the victim - 12In which situations can character outweigh an infringement?Doctor (bodily integrity)
Journalist (freedom of privacy)
Public bodies
Business competition
Sportsman - 13Under the Compensation Act 2006, how can one assess the standard of their duty of care was sufficient?(a) prevent a desirable activity from being taken at all to a particular extent or way
(b) discourage person from undertaking functions in connection with a desirable activity - 14How does each jurisdiction interpret defences?FR: faute implies absence of justification
DE: justification neutralises unlawfulness
ENG: Act of God is only a defence - 15What is the assumption of risk?The assumption of a general level of risk in an activity, which can be a defence unless there was a gross violation
- 16What role does consent play?It eliminates liability if the consent was informed at the practice was not outside the scope of what was consented too, however in the case of doctors if informed consent is not given but there are no damages, the defendant may still claim pecuniary loss
- 17Which test is used in the assessment of negligence?Objective normative
- 18In claims of negligence, what knowledge should be known?What they ought to have known and the fact that a particular conduct COULD lead to an undesirable event
- 19Which theory of causation do German courts often apply?Adequacy
- 20How are skills assessed in terms of negligence?Whether the tortfeasor had the skills to avoid an accident (generalised approach)
- 21What is the state of art in negligence?The required conduct for new products: they should be aware of all possible risks they could have known about
- 22When are subjective tests more commonly used?For children and handicapped people
Recuse cases - 23What is the liability test for websites concerning illegal information?Subjective test:
(a) the provider does not have actual knowledge of illegal activity or infomration and, as regards to claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information - 24Which test is used in Germany, England and France for the liaiblity for children?FR: compares child's knowledge to that of an adult
ENG and DE: child of similar age - 25What liability does each jursidiction have for parents?FR: strict
DE: liability for rebuttable negligence
ENG: negligence liability - 26How does each jurisdiction deal with mentally incapacitated people?FR: objective test
ENG: subjective but only when they lose all control
DE: subjective, but if this test fails, but may be held liable based on equity liability depending on financial means and needs of the victim - 27When will an English court assess the liability of a child according to that of an adult?Age 12 if doing something adult-like
- 28What is the effect of contributory negligence?Victim will not be awarded full damages
- 29Which tests are used in each country for contributory negligence?Objective DE/FR
Reasonable person ENG - 30How does each jurisdiction assess contributory negligence in children?DE: 7 y/o not possible; 10 y/o not possible involving motor vehicles etc. 18y/o only possible if they had sufficient understanding of their behaviour
ENG: reasonable child of same age
FR: bon pere de famille
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- European Tort Law Flashcards on Intention and Negligence, created by Jack Hutchinson on 14/11/2016.
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- Jack Hutchinson
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