Lecture 3 - Introduction to the tort of negligence

Question 1

Elements of tort of negligence

Answer 1

o The existence of a duty to take care which was owed to the claimant by the defendant.
o Breach of such duty by the defendant, and
o Resulting damage to the claimant.

Question 2

Who owns a dut to take care?

Answer 2

Heaven v. Pender - The idea of a general duty of care runs to all who could be foreseeably affected by one’s conduct

Question 3

Heaven v. Pender

Answer 3

The case occurred when an owner of a dry dock supplied ropes that supported a stage slung over the side of a ship. The stage failed because the supplied ropes had been previously burned. The failure of the stage injured an employee of an independent contractor working in the dry dock. The dry dock owner, the defendant, had failed in his duty of care to give reasonably careful attention to the condition of the ropes, prior to employing them to hold up the stage. The defendant was found liable.

Question 4

Current test of liability - Caparo v. Dickman

Answer 4

• Is the claimant foreseeable to a reasonable person?
• Is the claimant’s damage foreseeable to a reasonable person?
• Is there any policy reason to deny a duty?

Question 5

Winterbotton v. Wright

Answer 5

Defendant entered into a contract with the Postmaster General (PMG) to provide a mail coach to convey the mail bags along a certain line of road One the other hand, the Postmaster general entered into a contract with Nathaniel Atkinson to provide horses and coachmans. Winterbotton was hired by Mr Atkinson to drive the coach. The Defendant’s contract with the PMG required the coach to be in good working conditions and the contract provided that the Defendant was exclusively responsible for this. The Claimant was aware of these stipulations in the Defendant’s contract with the PMG, had no reason to know that these guaranties were not being satisfied, relied on them. The defects in the coach were latent (not visible). The coach broke down and the defendant was lamed for life.
The defendant was held not liable. In the reasoning the lords argue that there was no authority, possibility of creating too much litigation, claimant was 3d party of the contract Hard cases are apt to introduce bad law.