Law of Tort Coursework Text

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In the tort of negligence three things need to be proved in order for an action to succeed, the first being that the defendant owed a duty of care to the plaintiff, the second being that the defendant breaks that duty of care within the standard of care required by law and thirdly this breach of duty of care results in damage to the plaintiff. 1 in the case of donoghue v stevenson 2 it was said that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? the answer seems to be persons who are so closely and directly affected by my act that i ought reasonably to have them in my contemplation as being so affected when i am directing my mind to the acts or omissions which are called into question. We work very hard to create this website, and we trust our visitors to respect it for the good of other students.

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Rogers believes that this statement must be the most influential in any decision on any subject in the history of the common law in england. 4 rogers believe is generally very true as the main concept of negligence comes from that case and that statement. V home office 1969 5 where lord denning stated at bottom a matter of public policy which we, as judges, must resolve. This talk of 'duty' or 'no duty' is simply a way of limiting the range of liability for negligence 6 and confirmed the 'neighbour' principle from donoghue v stevenson 7 . This was furthered in the case of anns v merton london borough 1978 8 where it was said that in order to establish that a duty of care arises in a particular situation 9 then you must go through a two tier test. The first stage is to see if there was a sufficient relationship of proximity 10 so that the defendant ought reasonably to have had the plaintiff in mind whilst doing the act or omission that caused the breach of duty.

The second stage can be considered when there is a positive answer to the first stage. The second stage then looks to see if there are any factors that would limit the liability of negligence, i.e. Reasonable forseeability would a reasonable man have been able to foresee the consequences of the action? this principle allowed the courts to consider social and economic policies and was used to extend the duty of care into new areas not normally covered. In the case of hill v chief constable of west yorkshire 1988 11 the court applied policy considerations. The mother of a murder victim tried to sue the police for negligence in not capturing the murderer who had already committed 12 other similar crimes.

It was held that there was not sufficient proximity between the police and the murder victim as it could have been anyone that the murderer decided to kill and they also considered public policy and decided that the threat of litigation might have an adverse impact on the conduct of criminal investigations. This principle that came out of anns case was criticised in the case of yuen kun yea v ag hong kong 1988 13 where lord keith said that forseeability is not the only ingredient that will naturally lead to a duty of care and that the two stage test had been taken to a degree of importance that was not intended and regarded it as no longer suitable to decide the existence of a duty of care. The idea of proximity is easily concluded in every day cases that include physical damage but in some other cases proximity needs to be looked at closer in order to see if a duty was owed. This is shown in caparo industries v dickman 1990 14 where it was held that an auditor of accounts did not owe any duty of care to individual investors.

As lord bridge stated the question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of that damage suffered is relevant to the existence and extent of any duty to avoid or prevent it. Jones identifies what the main requirements for a duty of care in negligence to exist are. These being forseeability and sufficient proximity as in the case of anns and also that it must be fair, just and reasonable to impose such a duty. The courts policy now is to generally try to restrict the liability for negligence as you see from the retreat from the anns case. In the area of economic loss the ability for plaintiffs to recover damages is restricted. It is a general rule that economic losses from negligent acts are not actionable.

One being that there would be a risk of a high number of claims against the defendant for indirect economic loss due to the damage caused to another's property. It is concerned that if restrictions on economic loss were lifted or loosened then this would 'open the floodgates' for more and more claims from third parties. 1973 18 it established that you cannot recover economic damages if there has been no actual physical damage to your own property. The first coming from the case of hedley byrne v heller 1964 19 which allowed an action to be brought for negligent performance of an undertaking of a professional nature. 20 from coursewrok work info the second exception is, according to baker, more specialised and of a controversial nature.

V greystoke castle 1947 22 where they were able to recover losses from cargo that they were carrying when their ship got damaged by the defendants' negligence. This is justified by the fact that it is a joint venture between the ship owner and the cargo owner and that the ship owner was in possession of the cargo at the time of the incident. The third exception is a statutory exception under the fatal accidents act 1976.

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Which allows an action of wrongful death by a dependant for the loss of dependency. Before this the general rule in common law was that a third party could not sue with regards to the death of another. This position was changed to the former position under the above act because, as baker describes, it produced a major injustice. Another area, which has restricted the liability for negligence, is negligent mis statement. The main case in this area is hedley byrne v heller 1964 24 where is was held that a negligent mis statement had resulted in economic loss and this was actionable at a time when received wisdom was to deny such a claim where the negligence alleged took the form of an act. 25 from this case it established that for liability to exist there must be a 'special relationship' between the two parties based on the assumption of responsibility of the statement giver and that the receiver will trust this statement and act upon it. In caparo v dickman 1990 26 however suggested that negligent mis statement would be a discrete category to which certain considerations would need to be applied.

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