Tort Law of Negligence

Torts of negligence are breaches of duty that results to injury to another person to whom the duty breached is owed. Like all other torts, the requirements for this are duty, breach of duty by the defendant, causation and injury(Stuhmcke and Corporation. E 2001). However, this form of tort differs from intentional tort as regards the manner the duty is breached. In torts of negligence, duties are breached by negligence and not by intent. Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm(Stuhmcke and Corporation.

E 2001). The standard measure of negligence is the universal reasonable person standard. The assumption in this case is that a reasonable person is never negligent, thus the degree of care required is that of a reasonable person(Stuhmcke and Corporation. E 2001). The creation of tort of negligence is a very important tool by which gaps in the law is filled. Often, actions require that some wrongful intent be present in the mind of the actor. However, intent is a difficult thing to prove(Stuhmcke and Corporation. E 2001).

It is against this background that this paper is structured around four aims. Firstly, it is examines the background of the duty of care . Secondly it studies duty of care for negligent acts historical back ground; doctrine of Reasonable Foresee ability and proximity. Thirdly, the paper will discuss Duty of Care for Negligent advice. Finally, it will analysis. Significantly, this paper will contribute to a developed understanding of three essentials duty of care, standard of care and sufficient connection in law. 2. 0 Background The negligence is breaches of civil Law distinguish as the Tort Law.

There are three basics where plaintiff must establish ‘on the Balance of the Probability in organize to be successful in act in neglect. In another word, defendant owed the plaintiff a duty of care, defendant fail to meet the standard of care, and there must be adequate link in law involving the defendant is action and the harm. Moreover, there are cases where injuries arise without intent to cause them, but which necessitates compensation or correction by the person causing the injury, albeit negligently based on justice and equity.

The deliberateness of the act shows the degree of moral corruption or perversity of the actor. However, negligent acts are just a degree higher than accident. Like accidents, simple negligence is sometimes unavoidable. Everyone is bound to be negligent once and while. The only difference is that some negligent acts are lucky enough not to result to injury. To punish each and every negligent act that results to injury is to reward those who are lucky enough for their negligent acts not to result to injury.

It becomes more problematic when a person considers liability imposed on persons other than those who committed the breach. 3. 0 Duty of Care for Negligent Acts 3. 1 Historical Approach Before 1932 there was no generalization duty of care in negligence. The tort did exist and was applied in particular circumstance where judge make decision that duty should be owe, for example road accidents bailment or dangerous goods. In the Donoghue v Stevenson [1932] AC 562, Lord Atikin attempted to lay down general principles which would cover all the situations where courts had already held that there could be liability for negligence.

He said: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. 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 contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. ” 3. 2 Contemporary Approach

This ordeal has been criticised as being too broad but it made it simply for legal representative to dispute that there should be liability for carelessly causing damage in new circumstances, not formerly cover by case law. In 1970, Lord Reid said that Lord Atkin’s dictum must to apply unless there was some support or valid justification for its elimination Home Office v Dorset Yacht Co [1970] AC 1004. 3. 2. 1 Reasonable foreseeability Foreseeability’ means whether a theoretical logical person’ would have foreseen damage in the circumstances. Proximity’ is shorthand for Lord Atkin’s neighbour principle.

It means that there must be legal proximity, for instance a legal connection between the parties from which the law will attribute a duty of care. Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. 3. 2. 2 Analogies – recognized duties of care Establishing whether not the current case is analogous to cases in which a duty of care already been determine. For instance the category of which duty of care has been held not to exist. The law justifies all these through the word responsibility. Everyone has a responsibility for their actions.

This same word, responsibility, is also used to justify strict and vicarious liability. Parents, guardians, employers and other similar persons are responsible for their wards and employees. I think this is also a balancing of the scale. Due to circumstances such as incapacity in law of inability to pay, the injured party may be again left with the burden of his own injury. Again, the law finds it less unfair to make people who are charged with responsibility and are thus deemed to be in a position of relative control, by which they can avoid damage, liable for the injuries that may result from the negligent acts.

3. 2. 3 Neighbourhood factors Everyone has a duty to avoid injuring others. This is the other side of the neighbourhood factors. For instance it is argue that the strict liability tort wherein a person is made liable even if he is without fault. This strict liability often exist in inherently dangerous activities or activities vested with public interest such as products liability, explosives and keeping of dangerous animals. Another is as regards persons who are made liable for the negligent acts of incapacitated persons under their care such as guardians and parents.

They have not done anything to injure others and most of the things for which they are made liable happen beyond their control, but the state makes them liable for the damages caused because no one else may be made liable. 3. 2. 4 Social policy Policy is shorthand for public policy considerations. Policy considerations were recognised in the Wilberforce test and the test in Caparo v Dickman. Arguments that an extension of liability for negligence would lead to a flood of litigation or to fraudulent claims were once granted greater credence than they are today.

But other arguments, such as the possible commercial or financial consequences, the prospect of indeterminate liability, the possibility of risk spreading (e. g. , through insurance) and potential conflicts with rights in property or other social or moral values, are given due consideration. In modern days the courts have acknowledged a broad range of factor that may be appropriate to the rejection of a duty of care. For example, a duty of care may not exist. 4. 0 Duty of Care for Negligent Advice 4. 1 Development of the law There are plain distinction connecting negligence words and negligence action.

Therefore the chief Justice Gibbs in Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 255, outline three key different approaches(Khoury and Smyth 2007). Firstly, a person may fail to take appropriate precautions, which would be regarded as a negligent act. Secondly, it may refer to passive inaction where a person does not take any action. The general rule is that there is no duty on a person to take action in order to prevent harm befalling others. Final words might foreseeability established such a manners or flow that the claim of Donoghuev.

Stevenson, for instance the neighbourhood principle capacity guide to several claims great amount of harm. Therefore the High Court in Shaddock develop the following test involve three test questions, that must be response in establishing duty of care to exist. a) Was the advice given on a serious matter? b) Did the speaker realise, or ought he to have realised, that this advice would be acted upon? c) Was it reasonable for recipient to act on the advice? 4. 2 Shaddock test, reliance and assumption of responsibility The finding support on the case of Shaddock test has concluded that the professional owe the plaintiff duty of care.

Therefore, such finding does not automatically qualify the plaintiff to be award for the damage; the plaintiff must show the supplementary key. For instance the defendant breaches the standard of care, or there were Sufficient Connection in Law. By considering that the duty of care is owe, the defendant must take appropriate precautions, which would be regarded as reasonable person. 5. 0 Analysis 5. 1 (insert your first sub heading here) 5. 2 (insert your second sub heading here) 5. 3 (insert your third sub heading here) 6. 0 Conclusion

Reference list and Table of cases.