Outcome A6: Torts

Question 1

What are the elements of a negligence claim?

Answer 1

• A duty of care;
• a breach of that duty;
• damages resulting proximately from the breach.
  Plaintiff has the burden of proof.

Question 2

What is the general principle of duty of care in negligence?

Answer 2

The case of Donoghue v. Stevenson (1932) (ginger beer contained snail) established that “you must not injure your neighbour” and that your neighbour is anyone who is closely and directly affected by one’s actions that one out reasonably to anticipate such effect (e.g., a consumer of your ginger beer). The principle was extended in the 1970 Home Office decision in which the government was held liable for damage caused by escaped prisoners.

Question 3

What is the test for whether a duty of care exists?

Answer 3

In Anns v. Merton LBC (1978) (building was approved in faulty inspection and government at fault), the court held:
- First is there prima facie duty of care, e.g., is there a relationship where harm is reasonably foreseeable; and
- Second, if so, is there public policy to limit the scope of that duty.
This test has been modified such that in cases of economic harm (as opposed to physical injury) mere foreseeability is insufficient. There must be proximity. Now the “CAPARO” test (1990) is current approach in which the courts have moved back to reasoning by analogy and rejected a general principle of duty of care. There is now a 3 pronged test:
- the loss or injury is reasonably foreseeable;
- there was sufficient proximity between the parties; and
- it is fair, just and reasonable to impose a duty of care.

Question 4

What is the standard for determining foreseeability in relation to determining a duty of care?

Answer 4

The “reasonable man” standard.

Question 5

What are the general elements of a tort?

Answer 5

• A legal recognition that the injured party’s interest is one deserving legal protection;
• Intention, recklessness, negligence or strict liability;
• Actual damages.