Essay on negligence for Tort Law, AS level for WJEC exam board. Managed to get 16/18 on this essay with clearly explained theory that is regularly applied throughout the answer!! Great essay to use as a structure for your own essays as every essay i have done after this one for the 4th question on ...
Negligence was defined by LJ Anderson in Blyth as ‘when a person does the
opposite that a reasonable man wouldn’t do. It originated from the case
Donoghue where a woman was bought a drink which contained a decomposed
snail and suffered nervous shock. In order to be eligible for negligence, you must
have all three of the elements: duty of care, breach and damages and causation.
Duty of care is the physical and legal relationship between the claimant and
defendant (e.g. Employer and employee.) The case of Donoghue established the
neighbor test which Lord Atkins says is a test to see if anyone who you could
reasonably foresee could be harmed by you. In the scenario, Cerys’ stall was
unhygienic and so therefore, is foreseeable that someone could get ill due to the
standards in which the area its prepared in is poor. The neighbor test further
established the Caparo test, which was laid down in the case Caparo, where
shares were purchased that made a loss however the claim they made failed as
the proximity wasn’t enough. The Caparo test has three elements: proximity,
foreseeability and just fair and reasonable. Foreseeability is whether the
reasonable man could reasonably foresee harm. This is shown in the case Smith
and others where cinema was bought and damaged by kids however this couldn’t
have been foreseen as so claim failed. In the scenario, it could have been foreseen
that harm could be done as the poor hygiene could lead to contamination and
precautions such as cleanliness were not taken in order to prevent this and so it is
foreseeable that harm could be done. The second element in the Caparo test is
proximity, which involves any closeness legally or physically between claimant
and defendant. This is shown in Bourhill, where defendant collided with car,
resulting in claimant who 50 feet was away to have a stillbirth. No duty of care
was owed as not enough proximity between parties. In the scenario, proximity
applies as Noah bought a product from Cerys which resulting in him being
poisoned and due to it being direct, there is a contract between them and
therefore enough proximity. The final element is just, fair and reasonable, which
checks fairness in order to impose duty of care. This is shown in L and Another
where council stopped father seeing son during investigation however, they were
just doing their job. In the scenario, this applies as Noah suffered food poisoning
due to the food he bought of Cerys and so it is fair that she is held accountable as
if he hadn't of bought food of her, he wouldn’t of got food poisoning. The second
part of getting negligence is breach. This was defined by LJ Anderson in Blyth as ‘if
actions don't match reasonable man, it’s a breach of duty of care’. There are 5
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