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    If you are answering a problem question on tort of negligence, and you have established that there is no duty of care, or that there is a breach of that duty of care, is it necessary to then go on and look at the other requirements of negligence (causation, remoteness, defenses)?

    Thank you.
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    (Original post by Yazooo)
    If you are answering a problem question on tort of negligence, and you have established that there is no duty of care, or that there is a breach of that duty of care, is it necessary to then go on and look at the other requirements of negligence (causation, remoteness, defenses)?

    Thank you.
    The two findings you've outlined ("no duty" and "breach of duty") are mutually exclusive - did you mean "no breach of duty"?

    It'll depend to an extent on the nature of the question. Ultimately you have to be guided by what you think the examiner wants you to discuss, since there's no point wasting your time on red herrings. That said, it's always prudent to consider the benefits of putting in "if I'm wrong and there is a duty"-type discussion (benefits vs time/word limit costs) because the last thing you want is to cap your marks by not bothering to discuss the other requirements.

    In this particular case, given that the duty is the first requirement (and it'd make for a short question if there genuinely was no duty), I'd be inclined to discuss the other requirements and look at what the court's likely to decide on those assuming that a duty is found. However, this is on the assumption that you're only looking at the potentially tortious actions of one individual in the problem. If there are six potential tortfeasors and you think that one doesn't owe a duty, chances are you should be focusing your efforts on the others (e.g. the examiner wants you to discuss one of the others being potentially vicariously liable as an employer).

    Does this make any sense? :erm: Hope it's of some help.
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    Your question seems to be a little bit confusing here. If you want to establish whether there is a breach of duty of care, shouldn't you actually discuss causation and remoteness in the first hand? Are you taking A level law by any chance? If so, from my past experiences, the past year questions were more likely to focus on causation in law(remoteness). The cases of Wagon Mound (no 1), Hughes v. Lord Advocate and Page v. Smith were repeatedly mentioned in their mark scheme. So be sure, these cases are mentioned in you paper if you choose question on negligence.

    My little advice here, if you really want to ace the paper, be sure that you try as many of the past year papers as you can, because the patterns of the questions are very similar in nature. As soon you get the hang of it, you will find it very easy actually.
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    (Original post by applicant2014)
    Your question seems to be a little bit confusing here. If you want to establish whether there is a breach of duty of care, shouldn't you actually discuss causation and remoteness in the first hand? Are you taking A level law by any chance? If so, from my past experiences, the past year questions were more likely to focus on causation in law(remoteness). The cases of Wagon Mound (no 1), Hughes v. Lord Advocate and Page v. Smith were repeatedly mentioned in their mark scheme. So be sure, these cases are mentioned in you paper if you choose question on negligence.

    My little advice here, if you really want to ace the paper, be sure that you try as many of the past year papers as you can, because the patterns of the questions are very similar in nature. As soon you get the hang of it, you will find it very easy actually.
    Minor point, but I thought I'd pick up on it in case you're still studying law - no, you shouldn't ever talk about causation and remoteness before duty. The logical order is duty, breach, causation, (remoteness of) damage.

    Think about it - "causation" is shorthand for "the breach of duty caused the damage". You can't consider whether the breach caused the damage without having a clear idea in your mind of what the duty was and how the defendant failed to meet the relevant standard (i.e. breached it).

    I completely agree that the best way to do well is to practise past papers though. Most of the questions are variations on a theme!
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    Thanks for your correction Yup, I'm planning to pursue law during my uni studies. Mind if I ask:are you a lawyer? Just curious. No offence at all, it's totally fine if you choose not to answer....But, what I said was in order to say a person has committed a tort action such as in the tort of negligence, we have to follow the Caparo test to establish the duty of care owed, breach of the duty of care and then damage is caused to the plaintiff.(as tort of negligence isn't actionable per se like trespass)

    I mistyped my reply...Big apologies..It's true that after identifying that there is a duty of care owed( can be in psychiatric injury cases, pure economic loss or special groups cases and etc), then we have to discuss whether there is a breach. Then only proceed to causation and remoteness to establish negligence. The last part will be to think of any possible defences that can apply(volenti,contributory negligence and etc).

    Really big thanks to Tortious or else I will wrongfully mislead a person to write something untrue in his/her paper...lol...Can this be regarded as misrepresentation?? Just kidding.

    Sorry and thanks again...haha..embarrassed

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    (Original post by applicant2014)
    Thanks for your correction Yup, I'm planning to pursue law during my uni studies. Mind if I ask:are you a lawyer? Just curious. No offence at all, it's totally fine if you choose not to answer....But, what I said was in order to say a person has committed a tort action such as in the tort of negligence, we have to follow the Caparo test to establish the duty of care owed, breach of the duty of care and then damage is caused to the plaintiff.(as tort of negligence isn't actionable per se like trespass)
    Yes and no. I've finished my law degree and I'm currently on the LPC. I start my training contract next September.
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    (Original post by Tortious)
    Yes and no. I've finished my law degree and I'm currently on the LPC. I start my training contract next September.
    oh I see...Wow.... Best of luck
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    (Original post by Tortious)
    The two findings you've outlined ("no duty" and "breach of duty") are mutually exclusive - did you mean "no breach of duty"?

    It'll depend to an extent on the nature of the question. Ultimately you have to be guided by what you think the examiner wants you to discuss, since there's no point wasting your time on red herrings. That said, it's always prudent to consider the benefits of putting in "if I'm wrong and there is a duty"-type discussion (benefits vs time/word limit costs) because the last thing you want is to cap your marks by not bothering to discuss the other requirements.

    In this particular case, given that the duty is the first requirement (and it'd make for a short question if there genuinely was no duty), I'd be inclined to discuss the other requirements and look at what the court's likely to decide on those assuming that a duty is found. However, this is on the assumption that you're only looking at the potentially tortious actions of one individual in the problem. If there are six potential tortfeasors and you think that one doesn't owe a duty, chances are you should be focusing your efforts on the others (e.g. the examiner wants you to discuss one of the others being potentially vicariously liable as an employer).

    Does this make any sense? :erm: Hope it's of some help.
    Thanks for your reply.

    I ask because we've been given an assignment. I know the assignment is on negligence. We have covered the elements of negligence only up to causation so far in university lectures. We won't be doing remoteness or defences until next month and our assignment deadline is before we actually have a lecture on remoteness and defences.

    So, when doing my assignment, I don't know whether we are expected to discuss all the elements of negligence (duty, breach, causation, remoteness, defences) despite not having actually covered the last two elements (remoteness and defences) in lectures yet. Do they want us to only focus on duty?

    I hope this makes sense lol
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    (Original post by Tortious)
    The two findings you've outlined ("no duty" and "breach of duty") are mutually exclusive - did you mean "no breach of duty"?
    Oh, I meant establishing (1) whether there is a duty of care and if so, (2) whether there is a breach of that duty.
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    (Original post by Yazooo)
    Thanks for your reply.

    I ask because we've been given an assignment. I know the assignment is on negligence. We have covered the elements of negligence only up to causation so far in university lectures. We won't be doing remoteness or defences until next month and our assignment deadline is before we actually have a lecture on remoteness and defences.

    So, when doing my assignment, I don't know whether we are expected to discuss all the elements of negligence (duty, breach, causation, remoteness, defences) despite not having actually covered the last two elements (remoteness and defences) in lectures yet. Do they want us to only focus on duty?

    I hope this makes sense lol
    It "makes sense" insofar as I understand your post, but I'm not sure why it'd be timetabled like that! :indiff:

    If this isn't a formal assignment that counts towards your grade then your tutor(s) should be able to answer questions on the content. I'd be inclined to ask them to clarify the scope of the task - by asking what you've just posted you're not fishing for someone to tell you where to start your research, so they shouldn't have a problem in telling you.

    If they're not forthcoming with the information, I'd be inclined to have a stab at the causation/remoteness elements, assuming there's no word limit. You'll probably be "roughly along the right lines" (6/10), and it's better to write about some things that they deem irrelevant than to miss big chunks out because they actually expected you to self-teach it.

    Sorry I can't be of more help. :dontknow:
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    (Original post by Tortious)
    It "makes sense" insofar as I understand your post, but I'm not sure why it'd be timetabled like that! :indiff:

    If this isn't a formal assignment that counts towards your grade then your tutor(s) should be able to answer questions on the content. I'd be inclined to ask them to clarify the scope of the task - by asking what you've just posted you're not fishing for someone to tell you where to start your research, so they shouldn't have a problem in telling you.

    If they're not forthcoming with the information, I'd be inclined to have a stab at the causation/remoteness elements, assuming there's no word limit. You'll probably be "roughly along the right lines" (6/10), and it's better to write about some things that they deem irrelevant than to miss big chunks out because they actually expected you to self-teach it.

    Sorry I can't be of more help. :dontknow:
    It is a formal assignment, unfortunately. I might do all the elements and miss out defences...

    Thank you so much anyway. I just needed a second opinion on what to do.
 
 
 
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