Lecture notes
negligence
- Module
- MA Law
- Institution
- University Of Law (ULaw)
tort law mock answer
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Negligence is a breach of a legal duty of care owed to the claimant that resultsin harm to the claimant which is undesired by the defendant. In the claim of
negligence, a person Is not under a duty to take care to prevent harm
occurring to other person unless it is assumed to create danger. In Michael V
Chief constable of south wales police, the court held that the reason the police
were not liable for negligently failing to respond to emergency call where
person is killed because they did not assume it was their responsibility to do
so, due to general principle which doesn’t impose liability for omission.
A defendant will be liable in negligence if he is under a legal duty to take care
for the person who is injured or in danger. The first element which a claimant
must prove it that the defendant owed him a duty of care. It is essential to be
able to know if there is a certain relationship between the claimant and
defendant as this will give rise to a duty of care. Once it is decided that duty of
care is owed then this establishes a precedent. (Donoghue v Stevenson) the
test is one of close relationship and proximity. In the case of Hill V Chief
constable on west Yorkshire (1989), the victim informed the police the danger
she was encountered in. In this case it was decided that no general duty of
care is owed by the police to members of the public and as a matter of public
policy, the police are immune from allegations of negligence arising from their
investigation and suppression of crime.
To be able to bring a claim for an action for damages in negligence, it is
important to be able to establish that a duty of care should by owed. There are
4 steps of negligence to bring a claim. A duty must be established so it can be
proved a duty of care is owed, if there is not duty established then the claimant
cannot bring a claim, and this refers to novel duty situations where Caparo
tests is applied. For a breach in negligence to be proven Caparo test must be
applied; if there was reasonable foresight of harm, proximity of harm and if it
was fair, just, and reasonable to impose a duty. It is then that causation is
developed, and this element requires the defendant actions to hurt the
claimant. Once these 3 elements have been established, the claimant can then
apply for defences, and they can be raised by defendant if claimant has been
successful in satisfying all the elements of tort.
The first stage of Caparo revolves if it is foreseeable that the defendant’s
carelessness could cause damage to the claimant. Palsgraf V Long Island
Railroad Co [1928], in this case the court denied the claim in applying test of
foreseeability, the courts found that it is was not foreseeable that the claimant
had been injured. The second stage is based on whether there is a relationship
between the defendant and the claimant. This doesn’t mean there has to be a
physical proximity relationship between claimant and defendant, but there
must be connection. Alcock V Chief Constable of South Yorkshire Police
[1991], was held not to be owed a duty of care by the defendants because
relationship of claimant and defendant was held to be distant. The final aspect
of Caparo test involves establishing whether it would be fair, just, and
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