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Tort Law: Duty of Care and Negligence

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Added on  2023-01-24

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This document discusses the concept of duty of care and negligence in tort law. It explains the elements of negligence and how to prove a breach of duty. The document includes case studies and examples to illustrate the concepts.

Tort Law: Duty of Care and Negligence

   Added on 2023-01-24

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Running head: TORT LAW
TORT LAW
Name of the Student:
Name of the University:
Author Note:
Tort Law: Duty of Care and Negligence_1
1
TORT LAW
Answer 1:
Issues:
The issues involved in the present case are who can be sued by Jeremy and Lauren for
their loss and whether they will be successful if they institute a suit for negligence.
Rules:
The tort of negligence involves harm or injury caused as a result of failure to take
reasonable care (Goldberg, Sebok and Zipursky 2016). The main concept is that one must
exercise reasonable care in their acts by considering potential harm which can be caused
foreseeable to other people and property.
The modern law of negligence is being discussed in the case of Donoghue v Stevenson
[1932] AC 563. In order to succeed in a claim of negligence, the claimant must consider the
following elements, firstly the defendant has a duty of care, secondly, the defendant has breached
such duty of care, thirdly, damage is caused due to breach of duty and lastly, the damage was not
very remote to the act (Goudkamp 2017).
In order to prove the tort of negligence, the claimant must show that the defendant owes a
duty to him (Stickley 2016). The legal responsibility of the defendant to the plaintiff is based on
the failure of the defendant to perform any duty that has been recognized by law, towards the
plaintiff. It must be shown that the defendant has a duty of care which was established in the case
of Caparo Industries pIc v Dickman [1990] 2 AC 605. In this case, in order to prove that the
defendant has a duty towards plaintiff by the Caparo test. Lord Bridge held that besides the
presence of foreseeability of damage, necessary ingredient is that in any situation that gives rise
Tort Law: Duty of Care and Negligence_2
2
TORT LAW
to the duty of care, there must exist between the party having duty and the party to whom such
duty is directed a relation that is characterized by the law as a relation of proximity or
neighborhood. Moreover, the situation must be such that it could be considered as fair, just and
reasonable that the law must impose a duty of a given capacity on one party for the benefit of the
other.
The second condition is that there must be a breach of duty by the defendant as given in
the case of Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 (1 May
1980), High Court(Australia). In order to show the breach of duty, the claimant must show that
the defendant failed to take reasonable care to prevent the causation of such damage.
The third condition is that damage is being caused due to the breach of duty by the
defendant towards the plaintiff or claimant. It has been provided in the case of Barnett v Chelsea
& Kensington Hospital [1969] 1 QB 428. Causation is generally determined by applying the ‘but
for’ test given in the above mentioned case.
The final criterion to prove the tort of negligence is the remoteness of the damage as
provided in the Wagon Mound no 1 [1961] AC 388. This case provides that the defendant will be
responsible for loss only when such loss is of foreseeable nature. If the loss was not foreseeable,
then the defendant cannot be held liable for the full extent of the loss, even if the loss was much
more than was expected.
Another kind of tort law is the negligently inflicted psychiatric injury. The law of tort is
very serious in this regard. Besides applying the Caparo test, the courts have laid down other
tests that must be satisfied by the claimants so as to prove the liability of the defendant. Firstly
Tort Law: Duty of Care and Negligence_3

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