Tort Law: Establishing Negligence and Defense of Volenti Non Fit Injuria

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

1TORT LAW
ISSUE
i) Can Anita successfully establish a case of negligence against Benjamin?
ii) Can Benjamin put up a defence under the Civil Liability legislation?
RULE
Rule for Negligence
In order to establish a case of negligence, the claimant must prove the existence of the
entire essential requisite that constitute the tort of negligence under common law as well as
Civil Liability legislation (Gibson & Fraser, 2017). The most significant elements of
negligence were discussed in the case of Donoghue v Stevenson [1932] AC 562 which
includes:
a) A duty of care,
b) Breach of such duty of care,
c) Breach of such duty caused actual loss or damage,
d) Foreseeability,
e) Proximity of relationship
In Donoghue v Stevenson [1932] AC 562 the proximity of the relationship of the two
parties were discussed and held that the manufacturer should pay attention to the way the
bottling has been done in order to protect the consumer from any foreseeable injury. It is the
court that decides whether the defendant owed a duty of care to the claimant based on the fact
that such duty of care would have been seen to be existing by any ‘reasonable person’ under
the particular circumstances (Gibson & Fraser, 2017). A similar decision was observed in the
case of Anns v Merton London Borough Council (1978) AC 728 where a two-stage test was
applied to establish a duty of care of the defendant
a) a relationship of proximity based on foreseeability and
b) Fair reasons as to the presence of the duty of care.

2TORT LAW
Later in the case of Caparo Industries plc v Dickman (1990), 2 AC 605 (famously
known as the Caparo Test), the principles held in Anns case was elaborated and turned in a
three-fold test for determining the existence of duty of care. In this case the element of:
a) Foreseeability,
b) Proximity and
c) Fairness were discussed and established to determine the duty of care of the
defendant.
After proving that the defendant had a duty of care, the claimant needs to establish
that the defendant have breach such duty of care. In the case of Hall v Brooklands Auto-
Racing Club [1933] 1 KB 205, the term ‘reasonable man’ was discussed and held as a lay-
man or any ‘man in the street’. Here, an objective test was set up which held that breach of
duty could be established as to when the defendant had failed to execute his duty which is
anything that a reasonable person of ordinary prudence would have done in the defendant’s
position (Gibson & Fraser, 2017). The actual loss or damage may be a personal injury as
discussed in the Caparo case or a psychiatric injury as held in the Alcock v Chief Constable
of South Yorkshire Police [1991] UKHL 5. It may also be a pure economic loss suffered by
the claimant.
The existence of duty of care and its breach would not be sufficient to be successful
with the action of negligence unless the claimant proves that the actual loss or damage
caused to him was due to such breach of duty by the defendant. It needs to be proved that
the defendant’s actions were the factual causation of the claimant’s loss or damage (Gibson &
Fraser, 2017). It is often decided with the help of the ‘but for’ test as discussed in the case of
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 where it was held that the
defendant’s action would be questioned as to whether it was actual cause that adversely