Tort Law: Negligence and Liability

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

1
TORT LAW
Answer 1:
Issues:
There are two issues that are involved in the instant case. The first issue is against whom
Jeremy and Lauren can bring a suit for their losses. The second issue is whether they will
succeed if they sue for the act of negligence.
Rules:
The tort of negligence deals with the harm or injury caused due to the failure of taking
adequate care by a reasonable person. The main principle is that a person must use reasonable
standard of care to omit any potential loss, harm or injury that can be foreseen to other person or
property.
The present law of negligence is elaborated in the famous Donoghue v Stevenson case. In
this particular case, the ingredients that are to be proved by the claimant in order to be successful
in the negligence claim are provided. The main elements of tort of negligence are; duty of care of
the defendant, the breach of such duty by the defendant, such breach of duty has resulted into
damage and the damage is not remote.
To succeed in the claim of negligence, the plaintiff or the claimant must firstly show that
the defendant has a legal duty to take reasonable care towards the plaintiff which was observed
in the Caparo Industries pIc v Dickman case. For example, a doctor has a legal duty to take care
and provide him with proper medical treatment towards his patient. Similarly, an advocate has a
legal duty to advice and argue on behalf of his client in the court. To prove that the defendant has
a duty to take reasonable care towards the claimant, the Caparo test must be followed. Lord

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TORT LAW
Bridge observed that there must be presence of neighborhood or proximity relationship between
the having duty of care and the person to whom such duty is directed. Other elements of the
Caparo test are that the damage can be foreseen and the situation must be such that it can be
termed as fair, just and legally established where one party has a duty to work for the benefit and
welfare of the other party.
The second condition which the court must consider is the breach of duty by doing or not
doing something that a reasonably prudent person would do in the similar conditions. It was
given in the Wyong Shire Council v Shirt case where the defendant fails to execute reasonable
care as a reasonable prudent person against the claimant. The term ‘reasonably prudent’ person
means a person of reasonable diligence would act reasonably in that particular situation. The
plaintiff must prove that the defendant did not exercise proper care towards the plaintiff a s a
result of which breach of duty occurs.
The third criterion which the court will take into account is that, damage or loss has been
caused to the plaintiff because of the breach of duty by the defendant, which was observed in the
Barnett v Chelsea & Kensington Hospital.
The last criterion which the court must consider is that the damage or injury incurred by
the plaintiff is actually caused due to the negligence of the defendant. Such loss or damage must
not be too remote to be foreseen. If the defendant’s act has randomly caused injury or damage to
the plaintiff, such loss or damage if not foreseen, then the defendant could not hold liable.
Similar type of observation was made in the Wagon Mound no 1 case.
Another category of tort is the negligently implemented psychiatric injury or shock. In
order to prove this, apart from the application of Caparo test, the court has formulated other