Theories of the Common Law of Torts Assignment

Running head: TORT
Law of Torts
Name of the Student
Name of the University
Author Note

TORT
1
Issue
The issue is to advise Bob on his legal position in terms of his liability to the people
injured in the hike, which includes Greg, Mary and Frances.
Law
Essentials of Negligence
The tort of negligence is referred to the causation of damage to property, injury to
person or economic loss by way of carelessness. The three essentials of to prove the tort of
negligence are: a) the tortfeasor/defendant duty of care to the plaintiff; b) the defendant
breached is duty of care; c) such breach of duty has caused injury or damage to the plaintiff.
Another element which is vital for the determination of the negligence of the defendant is the
factor of remoteness (Harris, 2013, pp 24-32).
The plaintiff must prove that the defendant owed him a duty of care due to the degree
of relationship or proximity shared by them as held in the case of Donoghue v Stevenson
[1932] AC 562. In order to understand the extent of the liability, the case of Ultramares Corp
v Touche, Niven & Co 174 NE 441 (1931) could be referred to where the court decided that
the error of the accounts shall affect anyone who would read the audited reports. The
foreseeability of the harm was discussed with reference to the case of Perre v Apand (1999)
CLR 180. (Harris, 2013, p. 26).
When the defendant fails to take ‘reasonable care' of the plaintiff in the course of the
duty owed, the defendant breaches his duty of care. It is presumed that a ‘reasonable person'
would take reasonable care due to his duty of care towards people dependent on him, in all
circumstances, having an average intelligence.

TORT
2
The third essential elements to prove an act of negligence is the evidence of injury or
loss suffered by the plaintiff due to the act or omission (breach of duty of care) of the
defendant. It is the liability of the plaintiff to establish that he would not has suffered the
injury if the defendant had not breached his duty of care, as held in the 'but for' test in the
case of Cork v Kirby Maclean [1952] 2 ALL ER 402. The plaintiff must calculate the
aggregate amount and types of losses for which he is suing the defendant, which may include
pecuniary and non-pecuniary losses (Harris, 2013, p. 34).
Lastly, the element of remoteness needs to be established by the plaintiff showing
that the injury suffered by him was not too remote to be foreseen by the defendant, as
discussed in the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd
[1961] AC 388 (Harris, 2013, p. 32).
Rule of Defence
According to the common law of tort and Section 5R the Civil liability Act 2002
(NSW), a plaintiff has a duty of care towards himself, which obliges him to take reasonable
care in order to avoid injury for himself. Therefore, defendant could defend himself by the
defence of ‘contributory negligence' where he needs to establish that the plaintiff had
contributed to the negligence, therefore sharing a burden of 'carelessness’ and 'breach of duty
of care’ along with the defendant, as in the case of Mak Woon King v Wong Chiu [2000] 2
HKLRD 295.
In such situation, the defendant is still held liable for causing injury to the plaintiff;
however, the amount of compensation/damages that he is liable to pay is reduced by the
court. The amount of damages payable is determined as per the percentage of responsibility
held by the defendant and also by the plaintiff (Harris, 2013, p. 36).
Application