Negligence and Professional Negligence Annotated Bibilography 2022

Running Head: NEGLIGENCE AND PROFESSIONAL NEGLIGENCE
NEGLIGENCE AND PROFESSIONAL NEGLIGENCE
Name Of the Student
Name Of the University
Author’s Note

NEGLIGENCE AND PROFESSIONAL NEGLIGENCE
1
NEGLIGENCE
According to the common law, tort of negligence can be explained as failure to take
reasonable care to avoid any foreseeable risk by any reasonable person amounting to an injury or
damage to the other person. However, existence of contractual relationship is a quintessential
element for a tort of negligence to apply and exist.
ELEMENTS OF TORT OF NEGLIGENCE
The provisions of Civil Liability 2002 governs the elements of negligence and establishes
the burden of proof on the plaintiff to prove the existence of the tort of negligence. There are
four elements of the tort of negligence namely; duty of care, breach of such duty of care, the
harm caused to the plaintiff is the result of the breach of duty of care, and lastly, the harm must
be actual.
Duty of Care:
Duty of Care is the first element of the tort of negligence. Existence of duty of care is an
essential element and such duty of care arises from a contractual relationship between the
plaintiff and the defendant. The duties owed by one party to the other can be of two kinds
namely; the general duty of care and the special duty of care. The general duties form the
element of tort of negligence meaning the reasonable duty of care towards other person as any
reasonable person would have done in normal situation. Thus, the actions of the defendant is
under scrutiny to assess the breach of duty of care under the tort of negligence. The first element
of duty of care can only be fulfilled if the duty of the defendant is established as a general duty
which shall be taken care of by any reasonable man under normal circumstances. On the

NEGLIGENCE AND PROFESSIONAL NEGLIGENCE
2
contrary, the special duties include the imposition of statutory duties and other duties imposed by
case laws either in addition or in replacement of the existing regular duties of care.
Donoghue vs. Stevenson [1932]1 is the landmark case that has established the principles
for the test of duty of care. It was laid by Lord Atkin that the presence of duty of care shall be
determined by the usage of neighbouring principle. The quintessential element as laid down in
the case are two principles. Firstly the harm should be reasonably foreseeable and secondly, there
should be a proximate relationship between the parties to the case. It has further been established
by the Court that any reasonable man should be able to assess the harm. It has further been laid
down that the nature of the harm should be such that the culprit should be able to reasonable see
the same2. The court has further laid down the provision for the establishment of a proximate
relation between the parties for the existence of duty and care. In other words, duty and care
should have a proximity of relation for the estimation of negligence in a crime3.
Capro Industrues Plc vs. Dickman [1990]4, has laid down the three step test for the
estimation of presence of tort of negligence in any case. The tests are firstly, that the harm should
be foreseeable in nature. Secondly, proximity of relation should exist. Thirdly, the duty expected
from the defendant should be reasonable, just and fair as any other reasonable man would do in
normal circumstances. Further, the third party loss criteria was laid down in Esanda Finance
1 Donoghue vs. Stevenson[1932] AC 562
2 Grant v Australian Knitting Mills [1935] UKPC 62
3 Annets vs. Australian Station Pty Ltd [2002] HCA 35
4 [1990] 2 AC 605