The tort of
negligence protects the person, property and economic interests from damage
caused by another person not taking reasonable care.
Tort law
provides legal remedies for damage caused by negligence. Negligence is the tort
which now dominates modern tort law after the successful test case of Donoghue v Stevenson in 1932.
Suing for negligence
There are
three prerequisites for an action in negligence:
1.
A
duty of care – this is a duty owed by one person to another because of the
relationship between them which might cause injury.
2.
Breach
of the duty of care – in order for a breach to happen, one must first establish
the standard of care
3.
Damage
– a failure to fulfill the duty of care which results in actual damage to the
person who the duty of cared was owed to. The damage must have been caused or
contributed to by the breach of the duty of care.
Establishing a duty of care
To be
liable for negligence to another person, a person must owe a legal duty of care
to that other person. One explanation is that a “duty of care” means a duty to
take reasonable care or to exercise reasonable skill.
Whether a
duty of care exists in a particular situation is a question of law and not
fact.
Duty of
care arises from the following salient features:
1.
Reasonable
Foreseeability
2.
Proximity
– there must be a relation between two parties
3.
Reliance
– the reliance on duty of care
4.
Compassion
– charity and compassion does not create a duty of care
5.
Knowledge
– the defendant knew of the risk
6.
Vulnerability
of the victim – Was the victim able to protect himself?
7.
Control
or power to stop injury – if a person who has power to direct or to control the
actions of another person knows that there is a real risk of harm unless the
direction is given with care, that person owes a duty to exercise the power
with reasonable care for the other person’s safety.
8.
No
policy reasons – there are no policy reasons to deny a duty of care
