LAW OF TORT ASSIGNMENT
On the facts, the claimant Garfield suffered smashed panes of glass in his green house and sustains a fractured skull when he is hit on the head by a cricket ball. The local cricket club owner(defendant) may have an action bought by Garfield(claimant) under the tort of negligence or private nuisance.The author will first discuss on negligence and then later on to private nuisance.
In the novel cases where the existence of a legal duty is less obvious, the Caparo v Dickman test must be satisfied.As it was reasonably foreseeable that claimant would be injured, there was sufficient proximity and it is fair,just and reasonable to impose liability on the defendant.Hence it is arguable that the local cricket club owed Garfield duty of care as the first element under negligence can be proven.The second element which Garfield have to prove is whether the defendant breach the duty of care.To breach the legal duty of care,is to fall below the appropriate standard of care expected of the defendant when performing the act in question.In the case of Bolton v Stone,it was held that if the likelihood of harm caused by defendant was low then the likelihood of the defendant breaching of the standard of care would also be low.However,base on the facts the claimant house is built so close to the ground that it is almost inevitable that the ball would be hit over the fence and into the garden’s house from time to time.Thus the likelihood of harm is great,creating a high risk of injury to the claimant and the standard of care expected of the defendant would be higher.However,by referring back to the facts,since a 3 metre fence is erected it would seem to be sufficient to prevent injury or loss as the law does not expect the defendant to take absolute precautions(Fardon v Hercourt & Ravington).Thus Garfield’s action to bring the case under the tort of negligence would probably fail. Garfield will then be best advised to...