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TORT OF NEGLIGENCE

Tort is a civil wrong committed against an individual. The primary aim is to punish
the wrongdoer, along with compensating the victim for the harm done and lastly to
deter harmful activities. There are three types of tort law: Negligence, Intention and
strict liability.
Negligence is a form of tort that is recognized by the law as sufficient to impose
legal liability on the defendant.
In order to prove negligence and claim damages, a claimant has to prove a number
of elements to the court. These are:

the defendant owed them a duty of care


the defendant breached that duty of care, and
They suffered loss or damage as a direct consequence of the breach.
No Defenses

Duty of Care
In order to determine liability both Proximity and Foreseeability must be legally
established.
Proximity simply means that the parties must be sufficiently close so that it is
reasonably foreseeable that one partys negligence would cause loss or damage to
the other. As for Foreseeability it means whether a hypothetical 'reasonable person'
would have foreseen damage in the circumstances
In order to establish duty of care the neighbours test is carried out which was
originally derived from the Case of Donoghue v Stevenson [1932] by Lord
Atkins. This case law is concerned with when a duty of care is owed. As per its legal
principle, a duty of care can be owed in a wide variety of circumstances.
The incremental approach is adapted by courts to decide whether or not duty of
care is owed by considering how similar their action is to an existing duty situation.
Loss other than injury to a person or damage to property is regarded as economic
loss. Where negligence causes pure economic loss, courts have generally been
unwilling to hold that duty of care exists and hence damages generally cannot be
claimed.
Case Law: Weller v Foot and Mouth Research Institute [1966]
It is essential to note that the neighbors test applies primarily in the context of
personal injury or death, or damage to property. It will not apply in the case of
economic loss generally, except in the case of negligent misstatements. This is
further understood in the case of Hedley Byrne v Heller [1964] which provided
that there were some situations in which negligence could provide a remedy for
pure economic loss caused by thins the defendant had said, or information they had

provided; essentially there needed to be a special relationship between parties,


which would arise when defendants supplied advice or information, knowing that
the claimants would rely on it for a particular purpose.
A duty of care can be owed in respect of psychiatric injury, which is generally known
as nervous shock. In order to claim for the same, a claimant must prove that the
shock was caused by a physical injury or illness and if not these a positive
psychiatric illness. Page v smith [1995]
Breach of a duty of care
A duty of care will be breached if the defendant does not take the care which a
reasonable person would take in all the circumstances. The standard of care is an
objective one and hence to ensure whether general standard of reasonableness is
met the objective is carried out.
Case Law: Nettleship v Weston [1971]
Assessing the standard of care also depends on the skill and experience of the
defendant who belongs to a certain profession or trade. Professional people must
show the degree of care. (Medical industry)
Case Law: Bolam v Friern Hospital Management Committee [1957]
The cost of preventing injury must be proportionate. If it is proven to be extremely
high it generally considered that there is no breach.
Case Law: Latimer v AEC [1953]
Along with the cost, it is essential to measure the magnitude of the harm that is
likely to occur.
Case Law: Paris v Stepney Borough Council [1951]
Another important factor to asses is the degree of probability that the damage will
be done.
Case Law: Bolton v Stone [1951]
Some risks have potential benefits. Hence it is important to assess the usefulness of
the defendants action.
Case Law: Watt v Hertfordshire County Council [1954]
In order to establish negligence, it must be proved that the defendants breach of
duty actually caused the damage suffered by the claimant, and that the damage
caused was not too remote from the breach.

Causation is established by proving that defendants breach of duty was a cause of


the damage. To decide the same, it is important to analyze whether the damage
would have occurred but for the breach of duty; this is known as the but for test.
Case Law: Barnett
committee [1968]

Chelsea and

Kensington Hospital

Management

There is no causation if there is a break in the chain also known as novus actus
Case Law : Baker v Willoughby [1970]
As mentioned above, if causation is established the defendant may still escape
liability if he showed that the loss suffered by the claimant is too remote. A
defendant will only be liable if it was reasonable to foresee the type of damage that
actually happened which is further clarified through the test.
Case Law : The Wagon Mound [1961]
The type of damage must be reasonably foreseeable, although the whole series of
events which caused the injury need not be.
Case Law : Hughes v Lord Advocate [1963]
So long as the type of damage sustained is reasonably foreseeable, it does not
matter that it turns out to be more serious than could reasonably be foreseen
Case law : Smith v Leech Braine [1962]
To establish tort there should not be any defences. Listed below are the general
defences that apply to different torts
1) Contributory Negligence- Contributory negligence is not a complete defence.
Instead, it reduces the damage payable to the claimant
2) Volenti non fit injuria this phrase means no injury can be done to a willing
person and describes a defence which applies where the claimant has in
some way consented to what was done by the defendant thus voluntarily
taking the risk of harm.
Case Law: Morris v Murray [1990]
3) Illegality where the claimants case is connected with the fact that they may
have committed a criminal act, the defence of illegality may apply.
Case Law: Ashton v Turner [1981]