The claimant to proof damages

The concept of tort of negligence is difficult to establish, as it may require the claimant to proof damages, intentional behavior or at least recklessness. In order to determine whether the claimant Kevin has any possible tort of negligence claim against the defendants; Miss Harriet, James and Lily, we must first establish whether there was a duty of care owed, breached of duty and whether there was actionable cause of damage.

Each defendant plays a different role, thus the decision of whether or not there is a breach of duty owed to Kevin can be decided through: the objective standard of reasonableness, the standard of reasonable child and with the application of the “Bolam test,” as set out in the case of Bolam v Friern Hospital Management Committee. [1] Kevin and Miss Harriet In order for a claim to be brought against Miss Harriet, we must first establish whether there was actionable damage and if a duty of care is owed.

According to Lord Bridge; second criteria of the Caparo test[2], we must recognize if there is a proximate relationship between the parties and determine if it is fair, just and reasonable for a duty of care to be imposed. In this situation because Miss Harriet is Kevin’s teacher, thus responsible for ensuring the safety of her students, there is a strong proximity between the two parties and therefore duty of care is affective.

Moreover, we must verify whether a breach of the duty of care has occurred, i. e. the facts of the case and determining what actually happened. “Establishing breach of duty involves showing that the defendant’s conduct has fallen below the standard of care… the standard set by law is one of “reasonableness”. [3] In aiming to advise Kevin, it is vital to make reference to the objective nature of the “reasonable person test” as illustrated by Lord Macmillan in the case of Glasgow Corporation v. Muir.

[4] The defendants in this case own a tearoom, the manager of the shop allowed two members of party to bring a tea urn through the shop into the tearoom. However, accidently one of the carriers spilt tea on children in the shop while passing through. The plaintiff argued that the manageress were negligent in allowing them to pass through with tea. However, it was held that despite taking all due care, and because of the circumstances, the risk of the injury was not so high and a reasonable person would not have suspected the danger.

Due to the aforementioned details, the defendant was not held liable. Likewise, when dealing with a reasonable person in this scenario; Kevin does not have a claim to possible negligence against Miss Harriet on the facts that Miss Harriet acted accordingly as any reasonable teacher would. She allowed the children to work together and paint on the floor rather than at a desk. Kevin and James Kevin’s claim for negligence from James is unlikely to occur.

Although when applying the Caparo test[5] it can be recognized that there may be a duty of care owed due to the proximity relationship between the two students, however, this does not mean that there is a breach of duty. James, like Kevin, is in a class with ten-year-old children and therefore James falls under special standard of care – children. The Court of Appeal adopted an approach demonstrated in Mullin v Richards[6] where two fifteen-year old school girls were playing with plastic rulers having mock sword fight.

This play fight resulted into one ruler breaking and plastic from the ruler damage the claimants’ eye. It was held that the girls in this case were not held to standard of reasonable person but instead were held to standard of reasonable child of that age; the defendant was not held liable. Applying special standard of care and the objective test of reasonableness in this scenario, James could not have foreseen the harm caused to Kevin as a result of running across the classroom.

Kevin therefore does not have any possible negligence claim towards James. Kevin and Lily There are two steps that need to be considered in order to advise Kevin whether there is any possible negligence claim against Nurse Lily. First, determine whether or not a duty of care was owed and establish whether there was a breach of duty. Second, consider two central principles that have been applied in determining the standard of care demanded of professionals.

First, when applying the Caparo Criteria,[7] it can held to impose a duty of care: (1) the damage as foreseeable when Nurse Lily pulled the paintbrush from Kevin’s eyes, (2) there was a sufficiently proximate relationship between Kevin and Nurse Lily and (3) it is fair, just and reasonable to impose a duty of care. Given that there is a duty of care owed, we need to determine whether there was breach of duty. In order to do so, we can reflect on special standard of care – defendant claiming to have special or professional skill.