Tort of Negligence [10]

Question 1

Tort of Negligence Essentials

What is the fundamental legal duty associated with the tort of negligence? [1]

Answer 1

The essence of the tort of negligence is a duty to take reasonable care.

Question 2

Tort of Negligence Essentials

What four elements must be met for a claimant to succeed in an application for negligence? [1]

Answer 2

To succeed in an action for negligence at common law, it is necessary for a claimant to establish that:

• Duty: The defendant owed a duty to the claimant. Solicitors owe duties to clients.
• Breach: the defendant breached the duty owed to the claimant
• Causation: the defendant’s breach of duty caused the claimant to suffer loss
• Recoverability: The loss caused by the defendant’s breach of duty is recoverable

Question 3

Contract Law Essentials

What standard of care applies to the tort of negligence? [1]

Answer 3

A person who owes a duty to take care at common law will breach that duty if they fail to exercise reasonable care.

The default standard of care is that of the hypothetical “reasonable man” (*unless* a higher level of care is assumed or applies, depending on the circumstances, e.g. a professional expert will owe a higher duty of care in relation to their advice to a client than “man on Clapham Omnibus” would).

Question 4

Tort of Negligence Essentials

Disregarding personal injury claims, what limitation period applies to a negligent breach of duty of care, and when does that period begin to run? Can this period be extended? [5]

Answer 4

Per the Limitation Act 1980, a default six year statutory limitation period applies for a tortious claim.

It begins to run not when the breach of duty is committed but beings when the innocent party suffers recoverable loss as a result of the breach of duty (even if they do not know such damage has occurred). N.B. This can be contrasted with the general rule that a claimant has six years to bring a claim in contract from the time when the contract was breached.

There is also a secondary limitation period for claims in tort of three years from the date when the claimant acquired the material facts about the damage in respect of which they claim damages. E.g. requisite material facts were obtained during the default six year limitation period from the date of a recoverable loss arises and, as a result, may extend the period of limitation.

Even so, claims in tort other than personal injury actions must always be brought within 15 years of the negligence in question. However, if there has been fraud unknown to the claimant or deliberate concealment of a fact relevant to the claimant’s right of action, time does not begin to run until when the fraud or concealment has or should have been discovered.

Question 5

Tort of Negligence Essentials

What limitation period applies to negligent breaches of duty of care that apply to personal injury? [1]

Answer 5

Per the Limitation Act 1980, there is a special rule for the limitation period of personal injury claims: parties must bring a claim within three years of either: (i) the date the cause of action accrued or, if later, the date of knowledge of the person injured. This is regardless of whether the cause of action is in contract or tort. The court has a discretion to extend this period.

Question 6

Tort of Negligence Essentials

Can one exclude liability for death or personal injury? [1]

Answer 6

One cannot exclude liability for death or personal injury caused by negligence.