Negligence in Common Law of Torts

Running head: NEGLIGENCE
NEGLIGENCE
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NEGLIGENCE1
Negligence
In the common law of torts negligence is defined as the failure of the behavior of an
individual with a level of care that would have been expected to be exercised by any reasonable
person under similar circumstances. To place a successful claim in negligence the existence of a
contractual relationship is necessary.
The common law describes three elements that are needed for the establishment of a
successful claim in negligence. These three elements are- duty, breach and causation of harm.
The first element states that the defendant should owe the plaintiff a duty of care, for fulfilling
the second element the duty should be breached by the defendant and thirdly for that breach the
plaintiff must have suffered actual harm that has been caused as a result of the breach of care.
These elements have been discussed in details in the following paragraphs.
Duty of Care
Under the common law of tort the first element in a negligence case is the presence of
duty of care. For successfully claiming negligence the plaintiff should be proving that there was
a duty of care owed to them by the defendant. Typically two different types of duties are owed
by one person to the other. These two duties are- the general duty of care and the special duty of
care. A general duty can be described as a duty that is expected to be performed by any
reasonable person towards another person which under normal situation he would have
performed for himself. In any negligence suit the actions of the defendants are observed and
determined that whether the actions of any reasonable person would under similar circumstances
would have been similar to the actions of the defendant. If the behavior of the defendant is found
to be matching the behavior of any reasonable person then only the duty of care would be

NEGLIGENCE2
fulfilled. A special duty is a duty that has been imposed with the help of the existing statutes and
case laws either in addition to or in place of the regular duties of care.
The test for the duty of care was first seen to be established in the case Donoghue v
Stevenson [1932]. In the case Lord Atkin used the neighbor test for deciding the presence for the
duty of care. There are two main criteria needed to be proven as per the test. These two main
criteria are- the harm should be foreseeable in a reasonable way and there should be an existence
of a proximate relationship between the parties. The courts in the case Grant v Australian
Knitting Mills [1935] established that any injury or harm caused should be of reasonably
foreseeable in nature. It was established in the case Annetts v Australian Station Pty Ltd [2002]
by the courts that a proximate ‘connection’ should exist between the duty and the effect.
Presently, for the determination of the existence of negligence a three-step test is used which was
first established by the judges in the case Caparo Industries Plc v Dickman [1990]. As per the
Caparo Test the three criteria that are needed to be fulfilled are- (1) the harm should be
foreseeable to a reasonable extent, (2) there should be an existence of proximate relationship and
(3) the duty imposed on the defendant should be reasonable, just and fair. In the case Esanda
Finance Corporation v Peat Marwick Hungerfords [1997] the court held that an individual
cannot be held responsible for any third party loss if the loss was not foreseeable reasonably. The
instances where the defendant could be held liable for any reasonably foreseeable loss was
decided in the case The Wagon Mound no 1 [1961]. However according to the ‘egg shell skull’
rule that had been established by the court in the case Smith v Leech Brain & Co [1962] the
defendant could be held responsible for any unforeseeable reaction that the plaintiff has suffered
because of the negligent or intentional act of the defendant. The rule states that the defendant
should take their victim as found.