Law of Negligence

LAW 1100
LEGAL FRAMEWORK

Name: LAKMITH VIRAJ PERERA

Student ID: PELVD151
Subject: LAW1100D
Lecturer: Mr. PradeepPerera

Table of Contents
Page No.
1.0 introduction.

2.0 Background

3.0 Duty Of Care..

4.0 Standard of Care(Breach of Standard of Care)

4.1 Reasonable Person..
4.2 Guidelines
4.2.1 The Probability of the harm ..
4.2.2 The Seriousness of the possible injury
4.2.3 Costs and Opportunities of reducing or avoiding the risk.
4.2.4 Value of the defendants conduct..
4.2.5 Conformity with established standard..

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5.0 Actual Damage.

5.1 Types of damages .

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6.0 Analysis ...

6.1 Negligent Trot
6.2Drawbacks to the Society..
6.3Proof in a Negligence Case
6.4Breach of Standard of care
6.5The Probability of Harm..

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7.0 Conclusion

References
In Text References
End text References

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1.0 Introduction
In the background the meaning of negligence and the essentials will be discussed.
Duty to take care
Duty of care can be breached through Negligent Acts and Negligent Advice
2 types of approaches used whether the defendant acted negligently. The two
approaches are Historical test and the contemporary approach,
Standard of care or the reasonable person.
The Reasonable Person represents how most of people behavior in any given
circumstance.
The damage suffered by the plaintiff
The purpose of the damages is to restore the plaintiff to where he was before the conduct
of the defendant
Reasonable Person sensible individual standard exemplifies this conduct and is utilized to
figure out if a litigant has acted carelessly. When it is built up that the litigant owed an
obligation to the offended party/petitioner, the matter of regardless of whether that
obligation was broken must be settled. The test is both subjective and goal.
The probability of harm is analyzed in the analysis.

2.0 Background
Negligence is the doing of something which a reasonable person would not do or the
failure to do something that a reasonable person would do, and its used achieve
compensation for accidents and injuries. Negligence is also known as the breach of a legal
duty to take care.
Negligence will occur in all types of accidents such as physical, property damage,
Business errors
The main 3 essentials plaintiff must prove on the balance of probabilities in order to
succeed in an action in negligence. Are;
Duty to take care.
Standard of care or the reasonable person.
The damage suffered by the plaintiff
Negligent serves as the reason to consider the social event/individual persevering possible
energetic disasters, harm, mischief or risk at which gets the rights to sue the wrong
professional within the true blue structure, to get compensation.

3.0 Duty Of Care

For a court to determine the whether a duty of care is owed legal policies and legal
principles are taken into account. Some factors courts that courts take into account can be
1. What kind of harm did the plaintiff suffered
2. Relationship between the plaintiff and the defendant
3. Did the defendants control over the situation that gave rise to the harm
Hedley Byrne v. Heller
Duty of care can be breached through Negligent Acts and Negligent Advice
There are two types of approaches used whether the defendant acted negligently. The two
approaches are Historical test and the contemporary approach,
Historical test
When establishing of a duty of care in actions involving negligent acts was laid down in the
House of Lords decision in Donough vs. Stevenson case
Under the historical test There is a two part test for the courts to see whether there
defendant acted negligently and caused damages to the plaintiff the three prater test are:
Part 1: foreseeability
Objectivity test - was it reasonable foreseeable that the defendant's action will
cause damages to plaintiff
Osterlind v. Hill Supreme Judicial Court of Massachusetts
160 N.E. 301 (1928)
Part 2: proximity
Is the relationship with the defendant and the plaintiff
Contemporary approach
Contemporary approach determines the following;
Did a reasonably foreseeable risk of injury existed.
Did the present case is analogous to cases in which a duty of care has already been
established.
Assumptions of responsibility and the wrongdoers level of control.
Did policy consideration exist?

Historical Test - Donough vs. Stevenson (1932) AC 562

Thomas vs Quartermaine (1887) 18 QBD 695
Hedley Byrne & co vs. Heller (1963) 2 All E.R

4.0 Standard of Care(Breach of Standard of Care)

The standard of care in the law of negligence relates to persons conduct not the person's
state of mind. Every Time the defendant is required to exercise the same ordinary care
or due care. That a reasonable would do in a similar circumstance
If a person's conduct falls below required standard he/she may be liable.
In the case Donoghue Vs Stevenson (1932) AC 562 there was a breach of standard of
care so the defendant had compensation to the plaintiff. Another similar case is Fardon Vs
Harcourt Riving to (1932) 146 LT
People must guard against reasonable possibilities but they are not bound to guard
against fantastic possibilities.

4.1Reasonable Person
The Reasonable Person represents how most of people behavior in any given
circumstance. The sensible individual standard exemplifies this conduct and is utilized to
figure out if a litigant has acted carelessly.
Blyth vs. Birmingham waterworks (1856) 11 EXCH 781
For Example
If a person is driving 60 mph on a 25 mph road filled with people.
A reasonable person would drive 25 mph or slower on the same road. Therefore he is
negligent
Another Example is
If the same person is driving at 60 mph on 25 mph road to the hospital because his
child was injured and needed medical attention. Its true that he broke the traffic law but
the jury will say that he is innocent because that's what a reasonable person would do
under the circumstance.
There are some drawbacks as well on the meaning of the term reasonable.
The courts take the following into when deciding the Reasonable person;
Courts consider the Cost of measures Defendant could have taken to prevent the
damage or injury.
If there was a greater risk the must have taken greater requirement to take

precautions.
Reasonable person limitations
In the case Fardon v Harcourt-Rivington [1932] we can see there were
some limitations for the plaintiff when a court was deciding the reasonable person.
Unfortunately the plaintiff could not win the case because there were limitations.

Mansfield v Weetabix [1998]

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4.2The Five Guidelines

Courts have developed various guidelines which may be relevant and useful in
determining a breach in the standard of care in the circumstance
The Five Guidelines are;
The Probability of the harm
The Seriousness of the possible injury
Costs and Opportunities of reducing or avoiding the risk
Value of the defendants conduct
Conformity with established standard

4.2.1 The Probability of the harm

The principle sets up that the more unmistakable the probability of naughtiness, the more
vital the measure of thought which must be taken
Bolton v Stone [1951] AC 850 House of Lords

4.2.2 The Seriousness of the possible injury

This guideline states that if there is more possible consequences of injury that can happen
to the plaintiff the defendant must show a greater care.
That is, the more noteworthy the danger or some likeness thereof of unsafe harm or
misfortune happening in the circumstances, the more prominent the standard of
consideration that would be appeared by a sensible individual in their activities and thusly,
the more noteworthy the probability of a break if such sensible consideration is not worked
out.
PARIS -V- STEPNEY BOROUGH COUNCIL; HL 13 DEC 1950

4.2.3 Costs and Opportunities of reducing or avoiding the risk

This guideline states that costs and the difficulties faced when avoiding risk is high and the
actual risk is small, then the chances for a breach are low. That is, if the expense and
trouble of keeping away from the danger is little and the genuine danger is extraordinary,
then there is a more prominent probability of a break if healing move is not made
Latimer V AEC ltd

4.2.4 Value of the defendants conduct

This guideline states that the lesser the economical or social value of the defendant's
actions the greater the likelihood of breach of standard of care. This obviously does not
imply that suppliers of key administrations can be rushed. The rule seemingly forces an
open strategy measurement on the standard of consideration issue

4.2.5 Conformity with established standard

The standard of consideration is set by reference to unabashedly evaluated group values.
Without a doubt, in light of the fact that a litigant takes after basic practice does not as a

matter of course demonstrate that he is not careless as a typical practice might be

appeared by confirmation to act naturally careless

5.0 Actual Damage

Damages are the money defendant pay to the plaintiff in a civil case that the plaintiff has
won. In other word it's the monetary compensation awarded by the court to an individual in
a civil case who has been injured by the conduct of another party
The purpose of the damages is to restore the plaintiff to where he was before
the conduct of the defendant. There are three major types of damages available for the
plaintiff so the plaintiff can get what he has lost due to conduct of the defendant.
5.1 Types of damages
Compensatory Damages
Type of compensatory damages, this type of damages will be given to the plaintiff when it
is not caused directly or immediately by the wrongful conduct of the defendant but results
from the defendant's actions instead.
The measure of compensatory damages should be real and tangible. Maybe it can't be
fixed with the amount certainly. Especially in the cases where the plaintiff suffered in pain
and emotional distress. An offended party can recuperate harms for various distinctive
wounds endured as a consequence of someone else's wrongful behavior. An offended
party may recoup compensatory harms for both present and future physical agony and
enduring.
Nominal Damages
Nominal damages can be recovered by a plaintiff who successfully establishes that he or
she has suffered an injury by caused by the defendant by his or her wrongful conduct. For
Example, a harmed offended party who demonstrates that a respondent's activities
brought about the harm yet neglects to submit therapeutic records to demonstrate the
degree of the harm might be honored just ostensible harms
Punitive Damages
Another name for Punitive Damages is exemplary damage Will be awarded to the plaintiff
in addition to the compensatory damages. But its not awarded as compensation is
awarded to the plaintiff to punish the wrongdoer and as an example to others so others will
not do the same. The measure of reformatory harms to be honored exists in the prudence
of the tier of reality

6.0 Analysis
6.1 Negligent Trot
Negligent has three elements: a duty of care; breach of that duty; and damage caused by
the breach. There are various tests for establishing whether a duty exists between the
claimant and the defendant.
Careless torts are the most pervasive sort of tort. Careless torts are not considering
activities, but rather exhibit when an individual or element neglects to go about as a
sensible individual to somebody whom he or she owes an obligation to. The careless
activity found in this specific tort prompts an individual harm or fiscal harms. A litigant in a
carelessness suit regularly tries to discredit one of the components of the offended party's
reason for activity. At the end of the day, the litigant presents proof, for instance, that he or
she didn't owe an obligation to the offended party, practiced sensible consideration, did not
bring about the offended party's harms, et cetera. Notwithstanding discrediting one or a
greater amount of these components, a litigant may depend on one of a couple of
principles that may dispose of or breaking point obligation in light of affirmed carelessness.
Two of the more regular principles are similar deficiency and suspicion of the danger.

6.2Drawbacks to the Society

In law of negligence under the second essential Breach of standard of care when
deciding the reasonable person there are some Drawbacks to the society as well
A Reasonable person cannot tell the future like what will happen by his harmful actions
or consequence to the other party so the defendant will not be responsible to pay
damages or Compensation to the plaintiff. In the Case Hall v Brooklands [1933] 1 KB
205 the decedent didnt foresee the consequence that will happen to the plaintiff so the
was not responsible to pay any damages or compensation.
A jury by and large chooses whether a respondent has gone about as a sensible
individual would have acted. In settling on this choice, the jury for the most part
considers the respondent's behavior in light of what the litigant really knows, has
encountered, or has seen. Notwithstanding the respondent's genuine learning, a jury
additionally considers information that ought to be basic to everybody in a specific group.
In like manner, the respondent in the case above would be accused of realizing that a
pack of grain could harm a youngster, and additionally with knowing the regular affinities
of kids.
6.3Proof in a Negligence Case
Negligence cases can be proven through two types of evidence: direct and
circumstantial. evidence from personal knowledge of witness or from
photographs,videos,etc
Circumstantial evidence is by comparison, requires a fact-finder to draw an inference
based on the evidence that has been produced. Courts have planned exceptional

standards that administer confirmation in particular cases. In a slip-and-fall case, where

an offended party's damage happens when the offended party slips and falls because of
a condition on the respondent's property, courts require the offended party to
demonstrate that the condition existed for such a period of time, to the point that the
litigant ought to have found and helped the condition
Most of the time the plaintiff will rely on the doctrine of res ipsa loquitur, which is in Latin
for the same thing speaks for itself this doctrine will allow the courts to infer that the
defendant acted negligently, court could decide even without the proof of misconduct. To
apply this doctrine the plaintiff must prove that the event that occurred usually does not
happen in the absence of negligence.
6.4Breach of Standard of care
In Negligent risk might be found to exist where the respondent neglects to meet the
standard of consideration required by law. Once it is establish the plaintiff must prove
that the defendant was in breach of duty. The Objectivity test is used to see whether
there was a breach of Standard of care. At the point when making a case for harms
emerging from individual damage there is a period utmost of 3 years - records must be
documented no less than 90 days before as far as possible terminates so in functional
terms any application must be made inside 2 years and 9 months.
Objectivity test- the defendant is expected to meet the standard of a reasonable person.
Vaughan v Menlove (1837) 3 Bing. N.C. 467
6.5The Probability of Harm
The guideline establish that the greater probability of harm, greater the amount of care
which has to be taken
In Bolton v stone case stone got hit by a ball outside the home so she filed a case
against the cricket club to recover damages but the stone couldn't court said that there
was no breach of contract. The probability of harm was low the defendant had taken all
practical precautions in the circumstances. The cricket ground was there around for 90
years without without causing damages and provided a useful service for the community.
The plaintiff could have won the case if the ball comes out of ground and has many
damages has been made to the third party. I mean like if the probability of ball coming
out of the ground is high.
The rule builds up that the more prominent the likelihood of mischief, the more prominent
the measure of consideration which must be taken. That is, the more noteworthy the
danger or some likeness thereof of unsafe harm or misfortune happening in the
circumstances, the more prominent the standard of consideration that would be
appeared by a sensible individual in their activities and hence, the more noteworthy the
probability of a break if such sensible consideration is not worked out

7.0 Conclusion
To prove that the defendant's negligence acts or negligent advice cause any damages to
the plaintiff Negligent has three elements: a duty of care; breach of that duty; and damage
caused by the breach. There are various tests for establishing whether a duty exists
between the claimant and the defendant. Harms endeavor to quantify in budgetary terms
the degree of damage an offended party has endured in view of a litigant's activities.
Harms are discernable from costs, which are the costs brought about as an aftereffect of
bringing a claim and which the court may arrange the losing gathering to pay. Harms
likewise vary from the decision, which is a definite choice issued by a jury.
A break of obligation happens when one individual or organization has an obligation of
consideration toward someone else or organization, however neglects to experience that
standard. A man might be at risk for carelessness in an individual harm case if his break of
obligation brought about someone else's harm
Subsequent to building up the standard of consideration i.e. the measure of
consideration that a sensible individual would have practiced in the circumstances, to
succeed in a tort claim for carelessness the offended party should then demonstrate that
the defendant(s) fell beneath that standard of consideration. This segment of the site gives
data about how the appraisal of whether the defendant(s) broke the standard of
consideration is performed.

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Intext References
Donough vs. Stevenson (1932) AC 562
Thomas vs Quatermain (1887) 18 QBD 695
Hedley Byrne & co vs. Heller (1963) 2 All E.R
Osterlind v. Hill Supreme Judicial Court of Massachusetts
160 N.E. 301 (1928)
Fardon Vs Harcourt Riving to (1932) 146 LT
Latimer v AEC [1953] AC 643 House of Lords
Mansfield v Weetabix [1997] EWCA Civ 1352
Bolton v Stone [1951] AC 850 House of Lords
Prais Vs Stepney Borough Council; HL 13 Dev 1950
Derrick v Cheung (2001) 181 ALR 301
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Hall v Brooklands [1933] 1 KB 205
Vaughan v Menlove (1837) 3 Bing. N.C. 467

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Endtext References

Larson, A. (2003, October). Negligence and Tort Law. Retrieved from Expert Law:
http://www.expertlaw.com/library/personal_injury/negligence.html

Negligence. (2013, August 4). Retrieved from Legal services commission :

http://www.lawhandbook.sa.gov.au/ch01s05.php
Jaffey, A. J. E. (1985), Volenti Non Fit Injuria CLJ 87
Tan, K. (1995), Volenti Non Fit Injuria: An Alternative Framework 3 Tort L Rev 208.
The Illegality Defence in Tort (2001), Law Commission Report No 160.
Glofcheski, R. (1999), Plaintiffs Illegality as a Bar to Recovery of Personal Injury
Damages 19 LS 6.
Wells, L., & Thorin, E. (n.d.). Law of Decade
Matthews. (2001). Reasonable care en route
Buswell, Henry F. 1997. The Civil Liability for Personal Injuries Arising out of
Negligence. Littleton, Colo.: F.B. Rothman.
Chen, D. (2004). Duty of Care. Tort, 17-24

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