Tort of negligence and duty of care

Question 1

What is negligence?

Answer 1

is the most serious tort in practice.
- It’s defined as breach of legal duty to take care resulting in loss or damage to claimant
For claimant to prove on balance of probabilities

Question 2

Elements of a claim in negligence?

Answer 2

duty of care

*
breach of that duty

*
damage (which is caused by the breach) - loss

*
foreseeability of such damage - Remoteness

Defences

Question 3

How to determine a duty of care?

Answer 3

• See if theres precedent IF NOT TRY 3 STAGE TEST
• Donoghue v Stevenson – manufacturer owed a duty to the ultimate consumer
• Caparo industries v Dickman – 3 stage tests for establishing a duty of care.
  1. Stage 1 - Foreseeability of harm – the test is objective
  2. Stage 2 – relationship of proximity
  3. Stage 3 – it must be fair, just and reasonable to impose a duty.

Question 4

Rule on liability for omissions?

Answer 4

• General rule – no duty on a mere failure to act.
• EXCEPTIONS
  Statutory duty
  Contractual duty
  Defendant has sufficient control
  Defendant assumes responsibility
  Defendant creates a risk

Question 5

Liability for acts of third parties?

Answer 5

• General rule is law of tort only imposes on those who directly cause injury or damage to another. So not third parties.
• EXCEPTIONS
• Consider any precedent and draw analogies.
• Where there is sufficient proximity between the defendant and the claimant
• Where there is sufficient relationship between claimant and defendant and third party
• Where defendant has created the danger – Stansbie v Troman decorator owed a duty of acre to property owner as they allowed burglars into property by failing to secure it.
• The risk was on defendant’s premises – may have responsibility to get rid of it