Summary
Tort negligence summary
- Module
- Tort law
- Institution
- Cardiff University (CF)
Full summary of the elements of tort negligence.
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Tort NegligenceTort negligence is where the defendant commits a civil, moral wrong against the
claimant. Tort negligence is where someone acts carelessly towards another person
causing them to suffer harmful loss. This entitles the claimant to compensation, in the
form of damages, the purpose for which is to restore them to the position they were in
before the accident or loss. For a claim of negligence to be successful, the defendant
must owe a duty of care to the defendant, breach that duty and cause them damage
in the form of foreseeable loss or injury. The burden of proof on the balance of proba-
bilities is on the claimant.
Duty of care
The claimant must prove that the defendant owed them a duty of care. A duty of care
is a link between the defendant and the claimant that imposes a legal obligation to act
carefully.
The neighbour principle as established in Donoghue v Stevenson states that a person
owes a duty of care to anyone so closely and directly affected by your acts or omis-
sions. This principle has been modified into an incremental three stage test. This fol-
lows the precedent of Ross v Caunters which establishes categories of those who owe
an obvious duty of care within an established duty situation e.g a doctor to a patient.
Here, the court does not have to resort to the tests set out in Caparo industries.
The incremental approach is defined in Caparo Industries PLC v Dickman and contains
three stages. Was the damage reasonably foreseeable?, was there sufficient proximity
between the claimant and the defendant? and is it fair and just impose a duty of care?
If the courts satisfies all three tests, then a duty of care is established.
A) reasonably foreseeable
the claimant must prove that the damage was reasonably foreseeable. This is an ob-
jective test which states that if the ordinary reasonable man could foresee the damage
to the claimant, then a duty of care is owed, as in Kent v Griffiths. It doesn’t matter if
the defendant foresaw harm as only the reasonable person’s perspective is taken into
account. In addition it doesn’t matter what extent of harm actually occurred as it only
needs to be likely that some harm could occur.
If the harm is not foreseeable, then the claimant will not owe a duty if care. As in
Bourhill v Young.
B) sufficient proximity
the claimant must prove that there was sufficient proximity between the claimant and
the defendant. Proximity refers to closeness in time space or relationship. Proximity
requires that the claimant and the defendant have a legal connection. This link can be
through physical connection, as in Donoghue v Stevenson or a relationship, as in
McLoughlin v O’Brian.
C) fair and just
the court must consider whether it is fair and just to impose a duty of care.
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