Law of Tort

Negligence

Meaning of law of tort

Liability arises from the breach of a duty primarily fixed by the law, this duty is towards persons generally and its breach is redressible by an action for damages.

negligence Definition

Negligence means more than heedless or careless conduct…it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.(Lord Wright in Lochgelly Iron and Coal Co. v Mc Mullan)

Breach of a legal duty to take care which results in damage to the plaintiff.

Element of negligence

1. Duty of care

2. Breach of duty

3. Damage

Duty of care

A person will be liable under negligence if he is under a legal duty to take care

neighbour principle

- A person only owes duty to take care to his neighbour

- You must not injure your neighbour. You must avoid act which you can reasonably foresee would be likely to injure your neighbour

The test for the existence of duty

Who is my neighbour?

-Persons who are so closely & directly affected by my act.

-Persons whom you can reasonably foresee to be directly affected by your action

Case: Donoghue v. Stevenson

Issue: whether defendant owed duty of care to plaintiff?

Held: the test to determine the existence of duty is whether plaintiff is the neighbour of defendant?

Duty of care

Duty of care only arises when damage to the plaintiff is foreseeable.

-defendant must reasonably foresee that his act will cause injury to the plaintiff

Haley v. London Electricity Board

King v. Philip

Bourhill v. Young

Breach of duty

When does the duty is broken?Do something inconsistent to act of a reasonable man.

Blyth v. Birmingham Waterworks Co.“ Negligence is the omission to do

something which a reasonable man would do or doing something which a prudent and reasonable man would not do”.

Breach of duty

Test: reasonable man test

Would a reasonable man has acted as the defendant has done if the reasonable man faced with the same circumstances as the defendant

Who is a reasonable man?

Ordinary man without any particular skill unless he is actually one

Breach of duty

Factors to be considered:

1. Magnitude of the risk2. Importance of the object to be

attained3. Practicability of precautions

Magnitude of the risk

To what extent defendant’s conduct is risky?

-Degree of care required is high when the magnitude of the risk is high

1. Likelihood of the injury 2. Seriousness of the injury

Bolton v. Stone

Hilder v. Associated Portland Cement Manufacturers Ltd

Paris v. Stepney borough Council

Importance of the object to be attained

Have to balance between risk & importance of object to be attained-if the purpose to be served is very important, defendant not liable for taking that risk

Watt v. Hertfordshire County Council

Practicability of precautions

The risk must be measured against the

1) precautions that need to be taken to eliminate the risk and

2) The precautionary measures undertaken by the defendant

Latimer v. A.E.C. Ltd

Damage Breach of duty must be primary cause of damage

Test: the but-for test-whether damage suffered by the plaintiff is the

consequence of the defendant’s breach of duty

But-for the defendant’s breach of duty, would the plaintiff have suffered any injury or damage?

Barnett v. Chelsea & Kensington Hospital Management Committee

Intervening Acts

When does it happen?

when another happening takes place after the breach of duty by defendant which break in the chain of causation.

Types of intervening acts

1. Intervening natural event2. Intervening act of a third party3. Intervening act of the plaintiff

Intervening natural event

Loss is caused by a natural event which occurs independently of the defendant’s breach of duty

Effect: absolve the defendant of any liability if the breach of duty does not increase the probability of risk damage to the plaintiff

Carslogie Steamship Co. Ltd v. Royal Norwegian Government

Intervening act of a third party

1. The breach of duty causes a third party to act which subsequently causes the damage- defendant liable

2. The breach of duty gives an opportunity to the third party to act which he does on his own accord independently-defendant not liable

Intervening act of a third party

The Oropesa

Haynes v. Harwood

Intervening act of the plaintiff

Plaintiff’s own conduct cause of his damage

McKew v. Holland & Hannen & Cubitts (Scotland) Ltd