This ‘reasonable’ standard may be adjusted given the actual circumstances of the case. If the defendant failed to act reasonably given their duty of care, then they will be found to have breached it. This standard consists of the actions which the court considers a ‘reasonable person’ would have taken in the circumstances. To determine this, the court will set the standard of care that they should have met. The real issue is whether or not the actions of the defendant were sufficient to meet their duty. In many cases brought before the courts it is evident that a duty of care exists between the defendant and the claimant. There is sufficient proximity (ie Alex drove into Harry’s car) it is reasonably foreseeable that a collision between the cars could cause Harry some injury, and it seems fair, just and reasonable for Alex to owe a duty of care to Harry (and indeed all other road users). What does this mean for Harry? I think you’ll agree that Alex owes him a duty of care. Fairness means that it is ‘fair, just and reasonable’ for one party to owe the duty to another. Proximity simply means that the parties must be ‘sufficiently close’ so that it is ‘reasonably foreseeable’ that one party’s negligence would cause loss or damage to the other. The later cases of Anns v Merton London Borough Council (1977) and Caparo Industries plc v Dickman (1990) restricted the definition a little by introducing ‘proximity’ and ‘fairness’. This is a very wide (and complicated) definition that could include almost anyone – if still in operation today the courts would most certainly be overrun with cases. The Lords went on to explain that ‘neighbour’ actually means ‘persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected’. The House of Lords stated that every person owes a duty of care to their neighbour. they suffered loss or damage as a direct consequence of the breach.Įven if negligence is proved, the defendant may have a defence that protects them from liability, or reduces the amount of damages they are liable for.Īs we saw earlier, the concept of a duty of care was created in the Donoghue case.the defendant breached that duty of care, and.Thankfully, in order to prove negligence and claim damages, a claimant has to prove a number of elements to the court. However, think of the situation from Alex’s point of view, is it fair that Harry should be able to sue him just like that? People have accidents everyday – should they all be able to sue each other for every little incident? If they are then the courts would be overwhelmed with cases. Harry was injured as a result of Alex driving into his car and so it seems fair that he should be able to sue him. On the face of things the answer seems obvious. As a consequence of the accident Harry breaks a leg and is unable to work for two months. Harry is involved in an accident in which his car is hit by one driven by Alex. Let’s consider a hypothetical case and use it to demonstrate how the tort of negligence works. However, the House of Lords decided to create a new principle of law that stated everyone has a duty of care to their neighbour, and this enabled Donoghue to successfully sue the manufacturer for damages. Under contract law, Donoghue was unable to sue the manufacturer because her friend was party to the contract, not her. After drinking half the contents, she noticed that the bottle contained a decomposing snail and suffered nervous shock as a result. Donoghue was given a bottle of ginger beer by a friend, who had purchased it for her. In the 1932 case of Donoghue v Stevenson, the House of Lords decided that a person should be able to sue another who caused them loss or damage even if there is no contractual relationship. Negligence is a form of tort which evolved because some types of loss or damage occur between parties that have no contract between them, and therefore there is nothing for one party to sue the other over. Torts are legal wrongs that one party suffers at the hands of another. This article addresses each of the key elements in turn, but we begin with an explanation of why tort developed. The examiners’ reports indicate that students do not understand the subject very well – in particular, the various elements that a claimant must prove in order for the defendant to be found negligent. ![]() If there’s one area of the Corporate and Business Law syllabus that students appear to struggle with, it’s the tort of negligence. An introduction to professional insights.Virtual classroom support for learning partners.Becoming an ACCA Approved Learning Partner.
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