Negligence Law: Duty of Care, Breach of Duty, and Damages

This article discusses the essential elements of negligence tort, including duty of care, breach of duty, and damages. It explains the legal element and the facts satisfying it. It also provides answers to common questions related to negligence law. The article is relevant to law students and professionals studying or practicing negligence law.

Running head: NEGLIGENCE LAW
Negligence Law
Name of the Student
Name of the University
Author Note

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Table of Contents
Answer 1..........................................................................................................................................2
Legal Element..............................................................................................................................2
Facts satisfying the legal element................................................................................................2
Answer 2..........................................................................................................................................3
Answer 3..........................................................................................................................................4
Answer 4..........................................................................................................................................4
Answer 5..........................................................................................................................................5
Answer 6..........................................................................................................................................5
Answer 7..........................................................................................................................................6
BIBLIOGRAPHY............................................................................................................................7

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Answer 1
Legal Element
According to the negligence law, a person owes a duty of care towards another person
who is likely to be affected from the conduct or omission of the person committing such act or
omission1. This is known as the neighbor principle that was established in the landmark case of
Donoghue Stevenson [1932]2. The essential elements of the negligence tort are duty of care,
breach of duty of care and the damage caused due to such breach.
The aggrieved party must establish that the infringing party owed a duty to exercise
reasonable standard of care towards the aggrieved party and was able to foresee the risk of harm
that was likely to be caused to the aggrieved party due to his or her acts or omission3. It must also
be established that any reasonable person would have taken necessary steps to avert the risk of
harm if the person was in the position of the infringing party4. The aggrieved party is entitled to
compensation against the damage suffered due to such breach of duty of care.
Facts satisfying the legal element
In the given case scenario, the facts that satisfies this legal element was the facts based on
which the primary judge held the defendant liable for breach of his duty to take reasonable care
towards the plaintiff and causing him injuries.
The primary Judge considered the following factors that establish duty of care and its
breach committed by the defendant:
1 Cusimano, Gregory S., and Michael L. Roberts. "Contributory Negligence and Assumption of Risk." Alabama Tort
Law 1 (2016).
2 Donoghue Stevenson [1932] A.C. 562.
3 Gilbert, Richard J., and Paul T. Gilbert. Maryland Tort Law Handbook. LexisNexis, 2017.
4 Abraham, Kenneth. The forms and functions of tort law. West Academic, 2017

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Duty of care
The respondent or the plaintiff was about to do ‘skitching’ using the car driven by the
appellant or the defendant. The defendant permitted the plaintiff to do ‘skitching’ as he himself
would drive the car. Furthermore, the appellant was aware that the boys looked up to him as the
adult driver to allow or disallow the skitching activity. This gives rise to the duty of care of the
defendant towards the plaintiff.
Breach of duty
The appellant was a mature adult while the respondent was a 12-year-old child hence,
was immature. The appellant was aware of the dangerous nature of ‘skitching’ and the risk of
harm that was likely to be caused to the respondent along with the other boys and easily averted
it by refusing them. Further, the appellant did not insist the respondent and the other boys to put
on their helmets despite being aware that they were not wearing one.
Any reasonable person in appellant’s position would have asked the boys to wear a
helmet or even would have refused the ‘skitching’ to avert the risk of harm. This establishes
breach of duty of care of the appellant.
Damages
The breach of duty of care resulted in causation of severe injuries to the respondent,
which entitles the respondent to compensation for the damages suffered.
Answer 2
a) The following are the four acts of carelessness of the boy

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i. riding a skateboard holding on to the moving car of the appellant;
ii. voluntarily participation in an inherently dangerous activity;
iii. Failure to undertake precautionary measures for his own protection;
iv. Failure to put on a helmet for his own protection;
b) The one factor amongst the other mentioned factors that had not been considered by the
court is failure of the respondent to wear the helmet. This is because the appellant did not
establish that wearing a helmet would have resulted in different form of frontal lobe
injuries and that this lack of exercising reasonable care contributed to the injuries
sustained by the respondent.
Answer 3
The primary judge held the appellant liable for the injuries despite presence of
contributory negligence on part of the respondent because the appellant owed a duty of care
towards the boy, which he breached. The breach of duty of care was such significant that its
weighed more than the carelessness of the respondent. Further, the primary judge found that the
appellant could not establish that any of the grounds which gives rise to lack of exercising care
on part of the respondent, would have averted the injuries or has contributed to the accident and
the injuries sustained by the respondent.
Answer 4
The appellate court did not consider the breach of legal Road Rules while determining the
actions of both the respondent and the appellant. This is because the provisions of the road rules
do not define the requirements of reasonable care that should have been fulfilled by both the

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parties and that the conduct of either of both the parties, in the given circumstances, amounted to
a breach of such road rule provisions.
Answer 5
The Appellate court held the respondent liable unlike the primary judge because the
Appellate Court found that the 12-year-old respondent comprehended the nature of the risk of
injury which amounts to contributory negligence. This is because any reasonable 12-year-old in
the position of the respondent would have considered the dangerous nature of the activity due to
risk of losing balance at speed and landing on the road awkwardly.
Answer 6
The Appellate Court found that even though the respondent had knowledge about the
nature o skitching to be dangerous but it is likely that a 12 year old would not expect the injury to
be as serious as he sustained. Further, the court asserted that the respondent would find it
comforting that the appellant that is the father of his neighborhood friend equally participated in
the dangerous activity. Furthermore, the court held that the fact that father of his neighborhood
friend was responsible for the accident and such participation would have confirmed in the mind
of the boy that the skitching activity did not result in any unacceptable risk of injury.
In addition, the court allowed a small portion of compensation to be paid by the
respondent and a significant portion by the appellant as he was the operator of the vehicle and
must have exercised his duty of care towards the respondent.

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Answer 7
From this case, the principle that the Court of Appeal has attempted to explain is that any
individual or organizations that is entrusted with the duty of care to be exercised upon any child
or young person or adult, must ensure that reasonable duty of care is exercised. Such person must
also ensure that reasonable steps have been undertaken to ensure such safety and avert any risk
of harm that is likely to arise from either the conduct or omission of any act of the person
exercising such care5. It is regardless whether the person to whom another person owes duty of
care is a child or an adult or whether the activity concerned is related to a powerboat or a car, the
person must ensure safety of such person, especially when the risk of harm likely to be caused is
foreseeable and avoidable6.
5 Best, Arthur, David W. Barnes, and Nicholas Kahn-Fogel. Basic tort law: cases, statutes, and problems. Wolters
Kluwer Law & Business, 2018.
6 Levy, Neil M., Michael M. Golden, and Leonard Sacks. Comparative Negligence, Assumption of the Risk, and
Related Defenses. Vol. 1. California Torts, 2016.

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BIBLIOGRAPHY
Abraham, Kenneth. The forms and functions of tort law. West Academic, 2017.
Best, Arthur, David W. Barnes, and Nicholas Kahn-Fogel. Basic tort law: cases, statutes, and
problems. Wolters Kluwer Law & Business, 2018.
Cusimano, Gregory S., and Michael L. Roberts. "Contributory Negligence and Assumption of
Risk." Alabama Tort Law 1 (2016).
Donoghue Stevenson [1932] A.C. 562
Gilbert, Richard J., and Paul T. Gilbert. Maryland Tort Law Handbook. LexisNexis, 2017.
Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law: Responsibilities and Redress.
Wolters Kluwer law & business.
Levy, Neil M., Michael M. Golden, and Leonard Sacks. Comparative Negligence, Assumption
of the Risk, and Related Defenses. Vol. 1. California Torts, 2016.
Robbennolt, Jennifer K., and Valerie P. Hans. "Tort Law and Commonsense Justice:
Convergence and Divergence." Ct. Rev. 53 (2017): 110.
Verryt v Schoupp [2015] NSWCA 128

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