Liability in Negligence and Vicarious Liability

Individual Report
Running Head: COMMERCIAL LAW 0
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BUS 3035 1
Question 1
Negligence is an important aspect while studying tort law. It reflects a situation where a person
breaches his/her duty of care and fails to act like a responsible/reasonable person with respect to
another person to whom the duty of care was owed (Berg, 2019). To prove negligence in a
situation, some factors are required. These factors are mentioned hereunder:-
1. Duty of care: - This is the very basic requirement for negligence. The defendant is
required to owe a duty of care to claimant. If this duty would not be there then there will
be no question of negligence. Now to check whether a person owes a duty of care or not,
a decision given under many of the cases can be taken as a reference. Caparo Industries
pIc v Dickman [1990] 2 AC 605 plays an important role here. It was given in this case
that to held a duty of care three elements are required to be there. Firstly, there must be a
proximate relation sip between defendant and claimant. Secondly, the damages must be
foreseeable in a reasonable manner and lastly, it must be just and reasonable to levy the
duty of care to the defendant.
2. Breach of Duty: - This is another requirement to be successful in a claim of negligence.
This requirement says that defendant must breach the duty of care that he/she owe to
claimant. If the duty of care would not breach, there will be no issue of an argument
between the parties, hence it is an important requirement to prove negligence. Breach of
duty refers to a situation where a person fails to act reasonably and must bring the
claimant to a situation where the same can face an unreasonable risk of harm.
3. Damages: - The claimant must suffer from certain losses/damages due to a breach of
duty. The damages must be of nature that can be recognized by the law. Further, these

BUS 3035 2
damages must be a straight consequence of the breach of duty. Here this is to inform that
all the claimant need not face damages. Further nominal damages are sufficient to
establish a claim of negligence. It was given in the case of Barnett v Chelsea and
Kensington Hospital Management Committee [1961] that to check the causation, the
court takes help of “but for” test and determine whether damages would not have been
there but for defendant’s omission or negligent action.
Question 2
Similar to tort law, Consumer Protection Act also provides security to the consumer in those
cases where the provider of goods acts negligently. It put the strict liability on marketers,
importers, suppliers, and producers of goods which are defective and causes loss to consumers.
The main difference between protection provided under this act and protection provided under
negligence is that this act provides much greater protection to consumer in comparison to
protection provided under negligence. Different criteria are there to prove a claim for liability in
negligence as well as under the Consumer Protection Act 1987. As discussed above three
requirements need to be met in order to verify a claim of liability under negligence. These are the
existence of duty of care, reach of duty and damages to claimant out of such breach. In order to
discuss the same in context of Consumer Protection Act 1987, this is to state that following are
required to be there:-
 Defect: - The product must contain a defect. No matter what kind of product is this, but a
defect must be there as in case of the nonexistence of defect, no question of damages will
arise further.