Law of Tort new

Negligence is concerned with compensating people who have suffered damage as a result of the carelessness of others. However, the law does not provide a remedy for everyone who suffer in this way as access to compensation is restricted through the doctrine of duty of care. In the law of negligence in order for the claimant to succeed in his negligence action he must prove, firstly, that the defendant owed him a duty of care; secondly, the defendant breached that duty; and thirdly the claimant suffered damage as a result of the breach.

To determine whether a duty of care is owed we must examine the neighbour principle established by Lord Atkins in Donoghue v Stevenson1: "Who then, in law, is my neighbour? The answer seems to be... persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question2". This principal allowed courts to determine whether a type of loss was actionable or not.

It gave courts a starting point for the question of whether a duty of care existed, based on the reasonable foreseeability of damage. A more detailed test was put forward by Lord Wilberforce in Anns v Merton LBC3. This case established the two-stage test. The first stage was to determine whether the parties satisfied the requirements of the neighbour test. If the answer to this stage was yes, then the duty would exist.

The second stage involved establishing whether there was any policy considerations that stated that no duty should exist, if there were no policy reasons then the duty existed. This two-stage test was overruled and a three-stage test arose in Caparo Industries v Dickman4. It was held that claimants had to prove that damage was foreseeable, there was a sufficiently proximate relationship between the parties, and that it is just and reasonable to impose the duty.

Taking into consideration the neighbour principal Baljit, as a driver of a vehicle, owes a legal duty of care to other road users, i. e. his neighbours. A risk of damage to Chris, Judith was foreseeable as Baljit was driving his car very fast in such poor conditions. This demonstrates that he was not taking reasonable care, and therefore was putting other road users in danger. It was stated in Donogue v Stevenson that "you must take reasonable care to avoid acts or omissions which you can foresee would be likely to injure your neighbour5".

It can be argued that a close proximate relationship is not needed as Chris, Judith were injured. The courts do not have to investigate whether a 'proximate' relationship exists when a personal injury is involved as the injury, itself, forms a relationship between the parties. If the duty of care was imposed on Baljit it would be just and reasonable, otherwise the issue of public policy would surface. As all three criteria's are satisfied, when concerning Chris and Judith, it can be established that Baljit did owe them a duty of care.

However, in Brain's circumstances, Baljit was not performing any positive acts, i. e. misfeasance's that would have caused further harm, either was he allowing a harm to take place. It can therefore be decided that Baljit did not owe Brian a duty of care. In deciding whether Baljit had fallen below the standard of care required, we must consider whether there was a breach of the duty. A Breach of duty is when the defendant has fallen below the standard of behaviour excepted by someone undertaking the activity concerned.

The standard of care required is an objective test and is based upon the reasonable man and whether or not the defendants acted within the restrictions of the reasonable man. In Glasgow Corporation v Muir6 it was stated that "the reasonable man is presumed to be free from both over-apprehension and from over confidence7". The application of the reasonable man test can be seen in a number of cases. In Nettleship v Weston8 the defendant was taking driving lessons. On her third lesson, she drove into a lamppost and the claimant, her driving instructor, was injured.

The court held that she would by judged to the standard of the average competent driver and anything less would amount to negligence. In Roberts v Ramsbottom9 the defendant claimed a stroke affected his ability to drive. The court held the driver still owed a duty of care as a reasonable competent driver. In both cases it was established that the defendants fell below the standard of care required and applying this to Baljits circumstances it can be established that Baljit fell below the standard of care required by him and therefore was in breach of his duty.

Other factors that determine breach of duty are the foreseeability of harm; the likelihood of the risk happening, the extent of damage which is likely; the usefulness of the defendant's activity, practicality of precautions and finally common practice. For foreseeability, the standard of care is based upon what the reasonable man would have foreseen in the circumstances. Taking this into consideration it can be stated that the reasonable man would be able to foresee a risk of injury to another road user when driving at such a fast speed and in such poor conditions.