Outline the elements of the tort of negligence.

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Paul Whitby

Thetford Adult Education Centre

18429

Component Code: 1177/3

Examination Session: 2000/2001

TORT, Outline the elements of the tort of negligence.

List of Sources: See Page 5

(a) Outline the elements of the tort of negligence.

Summary

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.

. 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).
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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. ...

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