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Tort is a civil wrong committed against an individual. The primary aim is to punish
the wrongdoer, along with compensating the victim for the harm done and lastly to
deter harmful activities. There are three types of tort law: Negligence, Intention and
strict liability.
Negligence is a form of tort that is recognized by the law as sufficient to impose
legal liability on the defendant.
In order to prove negligence and claim damages, a claimant has to prove a number
of elements to the court. These are:
Duty of Care
In order to determine liability both Proximity and Foreseeability must be legally
established.
Proximity simply means that the parties must be sufficiently close so that it is
reasonably foreseeable that one partys negligence would cause loss or damage to
the other. As for Foreseeability it means whether a hypothetical 'reasonable person'
would have foreseen damage in the circumstances
In order to establish duty of care the neighbours test is carried out which was
originally derived from the Case of Donoghue v Stevenson [1932] by Lord
Atkins. This case law is concerned with when a duty of care is owed. As per its legal
principle, a duty of care can be owed in a wide variety of circumstances.
The incremental approach is adapted by courts to decide whether or not duty of
care is owed by considering how similar their action is to an existing duty situation.
Loss other than injury to a person or damage to property is regarded as economic
loss. Where negligence causes pure economic loss, courts have generally been
unwilling to hold that duty of care exists and hence damages generally cannot be
claimed.
Case Law: Weller v Foot and Mouth Research Institute [1966]
It is essential to note that the neighbors test applies primarily in the context of
personal injury or death, or damage to property. It will not apply in the case of
economic loss generally, except in the case of negligent misstatements. This is
further understood in the case of Hedley Byrne v Heller [1964] which provided
that there were some situations in which negligence could provide a remedy for
pure economic loss caused by thins the defendant had said, or information they had
Chelsea and
Kensington Hospital
Management
There is no causation if there is a break in the chain also known as novus actus
Case Law : Baker v Willoughby [1970]
As mentioned above, if causation is established the defendant may still escape
liability if he showed that the loss suffered by the claimant is too remote. A
defendant will only be liable if it was reasonable to foresee the type of damage that
actually happened which is further clarified through the test.
Case Law : The Wagon Mound [1961]
The type of damage must be reasonably foreseeable, although the whole series of
events which caused the injury need not be.
Case Law : Hughes v Lord Advocate [1963]
So long as the type of damage sustained is reasonably foreseeable, it does not
matter that it turns out to be more serious than could reasonably be foreseen
Case law : Smith v Leech Braine [1962]
To establish tort there should not be any defences. Listed below are the general
defences that apply to different torts
1) Contributory Negligence- Contributory negligence is not a complete defence.
Instead, it reduces the damage payable to the claimant
2) Volenti non fit injuria this phrase means no injury can be done to a willing
person and describes a defence which applies where the claimant has in
some way consented to what was done by the defendant thus voluntarily
taking the risk of harm.
Case Law: Morris v Murray [1990]
3) Illegality where the claimants case is connected with the fact that they may
have committed a criminal act, the defence of illegality may apply.
Case Law: Ashton v Turner [1981]