Tort Law: Negligence and Liability

This study material provides an in-depth understanding of tort law, specifically focusing on negligence and liability. It discusses the principles of negligence, the elements of a negligence claim, and the conditions for proving liability. Case studies and relevant case laws are included to illustrate the concepts. Whether you are a law student or a professional, this material will enhance your knowledge of tort law.

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

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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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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

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conditions that are to be satisfied by the claimants to prove the liability of such psychiatric
injury. In this regard, the court has also made a distinction between the victims of such injury;
the primary victims and the secondary victims. Those who are actually involved in the act as a
participant are called primary victims. The secondary victims are those who are the witnesses of
the acts. The secondary victims must establish four conditions in order to establish liability,
which are; the presence of a lose bond of love and affection, witnessing the act with total senses,
close proximity to the act or its immediate result and the psychiatric injury must has occurred
due to a shocking event. These conditions were laid down in the Alcock case of Alcock v Chief
Constable of South Yorkshire.
Application:
In this present case study, both the surgeon and Pablo can be sued by Jeremy for their
respective act of negligence. to succeed against Pablo, Jeremy must prove the four criteria of
negligence.
Firstly, Pablo has a legal duty to take reasonable care of Jeremy as his trainer. Jeremy
was performing under his guidance. Secondly, Pablo has not taken reasonable care, resulting into
breach of his duty against Jeremy. Pablo has not used the safety harness when Jeremy was
performing on elephant’s back to ensure his safety and protection. Thirdly, because of the breach
of taking reasonable care, Jeremy fell down and suffered from serious knee injuries and fracture
of ribs. Lastly, the injury caused to Jeremy can be foreseen. He was performing dangerous acts
on elephant back without proper protection and safety. By proving all these conditions, Jeremy
could succeed against Pablo.

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Similarly, Jeremy could also sue the doctor as he did not insert the needle properly due to
which he could not walk. He could succeed against the doctor as all the elements of negligence
were also available against him.
Lawren has witnessed the incident of accident of his son in front of his eyes with all his
senses as the secondary victim. Due to which, she was shocked and suffered from psychiatric
injury. All the conditions given in the Alcock case are available here. Hence she could also sue
Pablo for her loss.
Conclusion:
It can be concluded that Jeremy could sue both Pablo and the doctor for the injuries
suffered by him. In the same way, Lawren can also sue Pablo for her psychiatric injury.
Answer 2:
Issues:
The issue that is to be decided in this case is whether Polyndar has any duty to atke care
against Rubicon in the given case.
Rules:
In order to prove a professional negligence claim, the plaintiff or the claimant are
required to prove three conditions which are as follows; the professional has a duty of care
towards the claimant, the professional has caused the breach of such duty of care and that the
claimant has suffered a loss, damage or injury due to the breach.

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The breach of duty can be proved in respect of a professional by the objective test which
was held in the Vaughan v Menlove case. The objective test is not fixed and it varies with the
facts and circumstances of the case. It is usually decided when the defendant is required to meet
the standard of a reasonable person. In case of a particular profession, the standard is measure in
terms of that particular profession. This is also available to the trainees of that profession. The
application of objective test in respect of professionals is found in the Wilsher v Essex case.
When the objective test is applied, the court must consider four conditions which are as
follows. The first condition is the likelihood of the harm where the defendant can not be
apprehended to take care in situations that cannot be foreseen. It was held in the Bolton v Stone
case.
The second condition is the seriousness of the harm that is caused due to the breach of
duty by the professional as given in Wagon Mound No. 2. The third condition is cost of
prevention and the fourth is utility of the conduct of the defendant.
Application:
In the instant case, Rubicon has to prove that there as a professional breach of contract by
Polyndar in order to prove him liable. This can be proves by applying the objective test. He has
to prove the following criteria to succeed against Polyndar. The Rubicon Ltd. must prove firstly
that Polynder has a duty to take standard care towards it. Then it must prove that Polyndar has
infringed his duty of care towards it and lastly, it has to show that it has undergone tremendous
loss because of the breach of the duty of taking care.
In the present case, it is observed that Polyndar has performed his duty properly to his
client. He suggested the client to enroll a specialist surveying firm to carry on the required

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survey. But the client determined the contract with him. Moreover there was no contract between
Polyndar and Rubicon. Hence, Rubicon being not a party to the contract, cannot sue Polyndar for
the losses he suffered the main reason is Rubicon being a third party cannot make Polyndar
liable.
Conclusion:
From the discussion made above, it can be held that Rubicon cannot make Polyndar
liable for his losses.

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References:
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310.
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Bolton v Stone [1951] AC 850
Caparo Industries pIc v Dickman [1990] 2 AC 605
Donoghue v Stevenson [1932] AC 563
Vaughan v Menlove (1837) 3 Bing. N.C. 467.
Wagon Mound no 1 [1961] AC 388
Wagon Mound No. 2 [1967] 1 AC 617
Wilsher v Essex [1988] 1 AC 1074.
Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 (1 May 1980), High
Court(Australia)