Law of Tort: Negligence

This article discusses the law of tort and negligence, including the concept of fault, defenses like contributory negligence and comparative fault, negligent misstatement, psychiatric injury, and vicarious liability. It also provides examples of vicarious liability and discusses the rule of remoteness of damage.

Running head: LAW OF TORT: NEGLIGENCE
Law of Tort: Negligence
Name of the Student
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Author Note

1LAW OF TORT: NEGLIGENCE
Table of Contents
Question 1........................................................................................................................................2
Question 2........................................................................................................................................2
Question 3........................................................................................................................................3
Question 4........................................................................................................................................3
Question 5........................................................................................................................................3
Question 6........................................................................................................................................4
Question 7........................................................................................................................................4
Question 8........................................................................................................................................5

2LAW OF TORT: NEGLIGENCE
Question 1
Fault is the main ingredient to establish a tort where a person breaches a duty that he was
supposed to take care toward another. While negligence refers to an omission of a responsibility
which a prudent man would usually do or an action which a person of normal prudence would
not do. Such act or omission is the fault, which establishes the tort of negligence. It is important
to be proven as the remedy claimed by the plaintiff depends upon it. In Scott v. London & St.
Katherine Docks Co, a heavy sack fell on the plaintiff from the loading bay of defendant’s
warehouse. It was held by the Court that the defendant was under the responsibility to take care
and such irresponsibility had led to the occurrence of the fault1.
Question 2
Defenses like Contributory Negligence, Assumption of Risk and Comparative Fault
seems fair to both claimant and defendant.
 Contributory Negligence: Refers to a negligent conduct of a plaintiff that causes him
injury, over the defendant’s precautionary measures.
 Assumption of Risk: Plaintiff takes a risk knowingly.
 Comparative Fault: Another form of contributory negligence where a plaintiff’s fault is
reduced to some extent, however it still constitutes negligence on his part leading to
injury.
1 [1865] 3 H&C 596

3LAW OF TORT: NEGLIGENCE
Question 3
Negligent misstatement involves a person who is the position to ascertain a statement to
another, which turns out to be untrue and the person receiving such statement suffers injury due
to such misstatement. In Hedley Byrne & Co Ltd v. Heller & Partners, the House of Lords held
that a person is to be held liable for providing inaccurate information as the other person suffers
due to the reliance put on such person2. The factor of loss comes second in importance in
comparison to reliance. Therefore, in this case the court ordered that the plaintiff’s claim was not
maintainable as the ‘reliance was missing.
Question 4
Psychiatric injury refers to a sudden shock that agitates a victim’s mind, occurring due to
sheer negligence of another. In White v Chief Constable of South Yorkshire, it was held by the
court that the victim, who was a police office, had suffered from substantial psychiatric injury
due to their on-duty involvement in the Hillsborough disaster. It was held by the court that the
authority was liable for a ‘duty of care’ for certain extreme service conditions3. Additionally, the
court held that a rescuer was not liable to receive damages, just for witnessing the aftermath of
an incident, as he himself was not put under any risk.
Question 5
In Murphy v. Brentwood District Council, the plaintiff faced a pure economic loss due to
a negligent misstatement made by the defendant. It was held by The House of Lords that there
2 [1964] AC 465
3 [1999] 2 AC 455

4LAW OF TORT: NEGLIGENCE
was enough legal proximity between the parties that attract liability for the defendant4.
Therefore, the defendant was held liable to pay damages for the pure economic loss of the
plaintiff due to the tort of negligent misstatement.
Question 6
Vicarious Liability refers to the responsibility or liability of one person for another’s act
or omission. Generally an employer is held vicariously liable for the act or omission of his
employee who has done such act or omission ‘in the course of employment’. In A, DC v Prince
Alfred College Inc, it was observed that the defendant, a college, was liable for the assaults
committed by one of its employees (boarding master) because of the proximity between the
boarding master and his position to abuse5.
Question 7
In the Wagon Mound (No. 1) case, the Privy Council held that a party is liable only when
it fails to foresee a reasonably foreseeable danger and further fails to take precautionary
measures. The defendant took the defense of ‘remoteness of danger’ and contributory negligence
of the dock owners6. The court relieved the defendant of the legal burdens overruling the Re
Polemis case where the defendant was held liable irrespective of the fact that the damage was
foreseeable or not7. Therefore, the rule of remoteness of damage states that the liability of a
defendant reduces based on the fact that the damaging act done by such defendant was so remote
that it was not easily foreseeable for taking precaution.
4 [1991] UKHL 2
5 [2015] SASCFC 161
6 [1961] UKPC 2
7 [1921] 3 KB 560

5LAW OF TORT: NEGLIGENCE
Question 8
Some examples of vicarious liability:
 Employer’s liability: In Morris v CW Martin & Sons Ltd, the legal proximity between an
employer and employee was established when the employee had stolen a coat of a
customer for which the employer was held liable. Lord Denning held that the employee
stole it ‘in the course of employment’, therefore constituting vicarious liability8.
 Principal’s liability: In Allen A. Funt Productions, Inc. v. Chemical Bank, the principal
was held liable for its agent9.
 Parental liability: parental liability pertaining to a tort committed by a child arises only
when created by a statute or by a negligent behavior of the parents, held in Kaminski v.
Fairfield10.
8 [1966] 1 QB 716
9 405 N.Y.S.2d 94 (1978)
10 216 Conn. 29, 34 (1990)

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References:
A, DC v Prince Alfred College Inc [2015] SASCFC 161
Allen A. Funt Productions, Inc. v. Chemical Bank, 405 N.Y.S.2d 94 (1978)
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Kaminski v. Fairfield, 216 Conn. 29, 34 (1990)
Morris v CW Martin & Sons Ltd [1966] 1 QB 716
Murphy v Brentwood District Council [1991] UKHL 2
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2
Re Polemis & Furness Withy & Company Ltd. [1921] 3 KB 560
Scott v London & St Katherine Docks Co [1865] 3 H&C 596
White and Others v Chief Constable of the South Yorkshire Police [1999] 2 AC 455