The principle requirements of the tort of negligence.

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The principle requirements of the tort of negligence are that the defendant (D) should owe the plaintiff a duty of care that there should be a breach of that duty and that breach of duty should cause actionable damage to the plaintiff, which is not too remote.

Donoghue v Stevenson established the principle that D owes a plaintiff a duty of care if there is a relationship of neighbourhood in the sense that the plaintiff can be reasonably foreseen as likely to be affected by Ds act or omission.  Put by Lord Atkin, ‘ 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.’

The Caparo case provided an extension of the rules set out in Donoghue v Stevenson.  Lord Bridge’s opinion in this case is now regarded as the classic exposition of the modern approach to establishing a duty of care.  In his analysis, he laid down a ‘three-stage’ test for the existence of a duty of care, the ingredients of which are (a) foreseeability, (b) proximity, and (c) the fair, just and reasonableness of recognising such a duty.  Lord Steyn reaffirmed these rules in Marc Rich and Co AG v Bishop Rock Marine Co Ltd.

Regarding foreseeability, it must be decided whether it was foreseeable at the time of the relevant conduct (awarding of incorrect grades thus impeding their educational progress) that it would, if done carelessly, be likely to cause harm to the injured persons of the kind sustained.  It can be assumed that the actions of the PEB would easily distress any of their candidates as exam periods are stressful times and added difficulties could prove too much for some people.

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To establish proximity there must have been a sufficient relationship between the alleged wrongdoer and the injured person such that the former out to have reasonably had the later in contemplation as being so affected by that conduct, if done carelessly.  Although the PEB may not have specifically applied its ‘mind’ to Angie and Bridget, as their examiners, a ‘sufficient relationship’ appears to be found.

The discussion of what is fair, just and reasonable involves the exercise of judicial pragmatism.  It considers matters such as the relative risk of exposure of the parties and the extent to which ...

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