Outline the elements of the tort of negligence

Negligence has been built up from decided cases over many years. All torts comprise of an infringement of a person's rights in the first instance, and must be due to someone else's negligence; fault, or intention. The two basic criteria establish whether or not a tort has been committed. However, these two requirements were too general and have been furthered into those requirements that are outlined below. 1. The first is the duty of care that must exist in the first instance and was established in Donoghue v. Stephenson (1932), which created the 'neighbour principal'.

However, further to this it is reasonable to expect the negligent party to have been able to foresee that their act would be negligent, this was established in Bourhill v. Young (1943) and King v. Phillips (1953) both these cases established that the duty of care must be "foreseeable". It would be unreasonable and unjust to hold someone responsible for something that was unexpected, or of a freak nature. In recent years the duty of care has been furthered by the courts in Caparo Industries plc v.Dickman (1990).

Which established the criterion that the claimant must be 'proximate' to the act that caused damage, Boardman v. Sanderson (1964), the act must also be 'foreseeable', and the pursuance of the case must be "just and reasonable. " Would it be considered unjust or unreasonable for the courts to impose a duty of care Mulcahy v. Ministry of Defence (1996). 2. Secondly it must also be proved that there was a breach of the duty of care.

The concept of breach of duty was originally defined in Blyth v. Birmingham Waterworks Co.(1856), this established that the breach of duty of care is based upon the actions of a "reasonable man. " This means that the defendant was acting unreasonably, or outside of his normal duties Paris v. Stepney Borough Council (1951). Professional people (those people with a higher level of skill than the average man) must conduct themselves with the skill expected of that profession, Carmarthanshire C. C. v. Lewis (1955). 3. Finally there must have been damage caused to the claimant, the damage need not be to the claimants person, but can also be to his property.

Again the damage must be reasonably foreseeable Re: Wagon Mound (1961) and must be directly contributable to the defendants' actions. However, in Re: Polemis (1921), even acts that are unforeseeable can be held to be direct enough to establish negligence. (b) Comment on the problems which may occur when bringing a personal injuries case before the courts. Is a negligence claim the best solution? Commentary The first problem that presents itself to the common man when pursuing a personal injuries case is that of funding.

Most injuries cases will be those pursuing a remedy of damages and as such are less likely to get Legal Aid funding approval. Secondly there is the problem of costs as the majority of these cases are likely to be against large companies or multinational corporations. Should the claimant be lucky enough to be granted legal aid he would then have to deduct the costs of the case from his damages if the damages awarded were in excess of i?? 2,500. If the claimant is lucky enough to be Legal Aid funded or has sufficient personal funds to pursue the claim, he will then have the burden of proof firmly entrenched on his side of the case.

This means that the claimant will have to prove that the defendant owed him a duty of care in the first instance. This should be fairly easy to ascertain using Donoghue v. Stephenson (1932) as a benchmark and Caparo Industries plc v. Dickman (1990) to further argue a duty of care. However, this will be the point at which the defendant will cite any defences that he may have against the claim. It will then be down to the claimant to disprove their defence. The most difficult to disprove is consent and relies upon whether or not the claimant was aware of the danger. However, this does not imply consent Smith v. Baker & Sons (1891).

If the defendant is unable to explain how the damages occurred it may be a case of Res Ipsa Loqitor (let the things speak for themselves) and the claimant will not have to prove negligence as it may be a strict liability tort where there is no need to prove negligence Rylands v. Fletcher (1866). Where more people are choosing to co-habit rather than marry it may cause difficulty when trying to prove a close and loving relationship with the victim in traumatic shock cases Alcock v. Chief Constable of South Yorkshire (1992). Another problem with personal injuries claims is one of quantifying the level of damages.

For some injuries the actual damage is invisible, especially in claims for posttraumatic shock, or permanent depression due to witnessing an accident Chadwick v. British Transport Commission (1967). These forms of damage are very hard to quantify and as a result the actual awards from one case to another can vary immensely depending on how much the claimant was earning before the injury took place. Lisa Potts the nursery school teacher recently received  49,784 for her criminal injury, but Tina Clayton a firefighter whom suffered sexual discrimination received 200,000 by comparison.

As a result of such cases the whole system of civil and criminal injuries damages awards has come under much criticism. When considering whether or not a negligence claim is the best course of action, the financial position of the defendant should be taken into consideration before pursuing a claim, as there is little merit in trying to claim i?? 100,000 of damages from a council street sweeper on minimum wages. The second thing that needs to be considered before raising a claim with the courts is, is this the correct court?

Because where compensation against an employer or ex-employer is being sought an industrial tribunal may be far quicker and cheaper in the long run. Finally in this society where more and more people are reaching for their solicitor at the first sign of trouble, we as a society need to take a step back, calm down and try good old-fashioned talking, now re-named in euro talk as arbitration.

Bibliography

Table of Cases Donoghue v. Stephenson (1932) A. C. 562 Bourhill v. Young (1943) A. C. 92 King v. Phillips (1953) Q. B. 429 Caparo Industries plc v. Dickman (1990) 2 A. C. 605 Boardman v. Sanderson (1964) 1 W. L. R 1317