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The Ingredients Required To Establish The Tort Of Negligence

2281 words - 9 pages

The tort of Negligence is defined by Winfield as, ‘as breach of a legal duty to take care which results in damage to the claimant’ . To bring an action in the tort of negligence it’s not enough to prove that defendant behaved carelessly. It is just one of the ingredients required to establish the tort of negligence, the claimant must prove that the defendant owes the claimant a duty of care. The defendant has acted in breach of that duty and as a result of that breach, the claimant has suffered damage which is not too remote a consequence of the defendant’s breach. As it was observed in Heaven v Pender ‘Action in negligence must fail where a duty is not established’

Duty of care is a concept which developed throughout the nineteenth century, In Heaven v Pender Brett M.R provided a vague definition of duty of care, and it did refer to one person with regards to another but failed to describe the nature of the relationship which had to exist between the claimant and the defendant. Lord Atkin in Donoghue v Stevenson elaborated that causing harm should not be enough to establish a duty of care and presented the neighbour principle.
This developed two stages to establish a duty of care first likelihood and then proximity ‘In the case of Home office v Dorset Yacht it was held that home office owed a duty of care for their emissions as they were in position to control the third party which caused that harm and it was foreseeable that harm would be caused with their inaction. In regards to proximity it was held in Bourhill v Young that, ‘No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between the claimant and defendant when the incident occurred.
In Caparo v Dickman it was concluded that, in future, to establish a duty of care, either the claimant must prove to a direct precedent, or to a closely analogous precedent, where a duty of care had been imposed, or in cases where no relevant precedent exists, the court should apply three criteria to determine whether there is a duty of care.
The damage must be foreseeable;
There must be a sufficiently proximate relationship between the parties;
It must be “fair, just and reasonable” for the court to impose the duty of care in light of policy considerations with which court is concerned.
To examine the case of Belinda all these elements have to be considered individually. The point to be considered in her case is that whether the damage caused was foreseeable and a reasonable person in same circumstances ought to have foreseen. Is she a foreseeable claimant who was directly affected by defendant’s negligence? In the words of Lord Atkin,’closely and directly affected by defendant's negligence’ can be considered as a foreseeable claimant. This principle is illustrated by the House of Lords ‘decision in Bourhill v Young .
Defence can argue that she was not a foreseeable victim following the decision in Palsgraf v Long Island Railway Board , Where it...

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