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Unit 22 Aspects of Civil Liability - P1 P3 M1 (GUARANTEED TO PASS)
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Unit 22 - Aspects ofCivil Liability
,Explain the Requirements for Liability in the Law of Negligence
In order to prove that the defendant was negligent and therefore liable for your injuries,
you must prove all of the "elements." For instance, one of the elements is "damages,"
meaning the plaintiff must have suffered damages (injuries, loss, etc.) in order for the
defendant to be held liable.
There are five elements which need to be proved these include:
Duty of care
Breach of Duty
Cause in Fact
Proximate Cause
And Damages
Duty of Care
The outcomes of some negligence cases depend on whether the defendant owed a duty
to the plaintiff. Such a duty arises when the law recognizes a relationship between the
defendant and the plaintiff, and due to this relationship, the defendant is obligated to act
in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily
determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable
person would find that a duty exists under a particular set of circumstances, the court
will generally find that such a duty exists.
In the example involving the defendant loading bags of grain onto a truck, and striking a
child with one of the bags, the first question that must be resolved is whether the
defendant owed a duty to the child. In other words, a court would need to decide
whether the defendant and the child had a relationship such that the defendant was
required to exercise reasonable care in handling the bags of grain near the child. If the
loading dock were near a public place, such a public sidewalk, and the child was merely
passing by, then the court may be more likely to find that the defendant owed a duty to
the child. On the other hand, if the child were trespassing on private property and the
defendant did not know that the child was present at the time of the accident, and then
the court would be less likely to find that the defendant owed a duty.
The Tests
Duty of care for personal injury and property damage
The existence of a duty of care for personal injury and property damage was originally
decided by Lord Atkin's neighbour test from Donoghue v Stevenson
The neighbour test:
Donoghue v Stevenson [1932] AC 562
Lord Atkin:
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, "The rule that you are to love your neighbour becomes law, you must not injure your
neighbour; and the lawyer's question” Who is my 'neighbour?" receives a restricted
reply. You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who then in law is my
neighbour? The answer seems to be persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected when
I am directing my mind to the acts or omissions which are called in question."
The neighbour test for establishing duty of care can be broken down into two
requirements:
Reasonable foresight of harm
A relationship of proximity
Under the Caparo test the claimant must establish:
1. That harm was reasonably foreseeable
2. That there was a relationship of proximity
3. That it is fair, just and reasonable to impose a duty of care.
It can be seen that the first two stages are taken directly from the original neighbour
test. Fair, just and reasonable relates to the same policy considerations under the Anns
test. In fact the Caparo test contains the same elements as Anns. The main difference
being, that under Caparo it is the claimant that must put forward policy reasons for
imposing liability whereas under Anns, liability would arise once the claimant had
established reasonable foresight and proximity and the defendant had to demonstrate
policy factors for negating liability. For further details relating to policy factors see here.
Breach of Duty
A defendant is liable for negligence when the defendant breaches the duty that the
defendant owes to the plaintiff. A defendant breaches such a duty by failing to exercise
reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the
issue of whether a defendant breached a duty of care is decided by a jury as a question
of fact. Thus, in the example above, a jury would decide whether the defendant
exercised reasonable care in handling the bags of grain near the child.
The Objective Test
Breach of duty in negligence liability is decided by the objective test i.e. the defendant is
expected to meet the standard of a reasonable person:
Vaughan v Menlove (1837) 3 Bing. N.C. 467
The objective test can be variable and may depend on the circumstances of the
particular defendant or the situation. For example:
An amateur footballer is not expected to meet the standard of a footballer in the first
division: Condon v Basi [1985] 1 WLR 866
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