Tort of negligence
Tort of negligence
Legal obligation on persons to exercise reasonable care not to cause harm to others in specified circumstances.
In order to establish liability for the Tort, the victim has to show:
1. He is owned a duty of care by the tortfeasor;
2. The tortfeasor has beached that duty of care AND
3. The victim has suffered resulting damage
Duty of care:
The “Neighbor Principle” to establish whether or not a duty of care is owed in the context of the Tort of negligence.
First one has to establish that there was factual foreseeability of damage resulting from the negligent act.
Factual foreseeability: if the tortfeasor was careless in the way that he went about his affairs, the victim would suffer damage from such carelessness.
Secondly, the must be sufficient proximity between the victim and the tortfeasor.
Proximity: show proximity between the tortfeasor and the plaintiff. (Include physical, circumstantial and causal proximity)
Finally, there should not be any policy considerations which would negate the existence of a duty of care
Policy consideration: Open to the defendant to argue that there are policy considerations which exist that should negate the existence of a duty
Breach of duty:
The plaintiff has now to establish the standard (or level) of care which the law expects of the Tortfeasor in the given situation
The standard of care which is expected is that of “a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs”
The doctrine of res ipsa loquitur. Generally, it is the plaintiff who bears the burden of adducing evidence to prove that the defendant has not met the standard of care expected and has therefore beached the duty of care. The doctrine of res ipsa loquitor (the things speaks for itself) may assist the plaintiff in establishing his case without having to do this. Where the doctrine operates, the plaintiff only needs to show that he has suffered loss or damage from the incident. the burden of
Legal obligation on persons to exercise reasonable care not to cause harm to others in specified circumstances.
In order to establish liability for the Tort, the victim has to show:
1. He is owned a duty of care by the tortfeasor;
2. The tortfeasor has beached that duty of care AND
3. The victim has suffered resulting damage
Duty of care:
The “Neighbor Principle” to establish whether or not a duty of care is owed in the context of the Tort of negligence.
First one has to establish that there was factual foreseeability of damage resulting from the negligent act.
Factual foreseeability: if the tortfeasor was careless in the way that he went about his affairs, the victim would suffer damage from such carelessness.
Secondly, the must be sufficient proximity between the victim and the tortfeasor.
Proximity: show proximity between the tortfeasor and the plaintiff. (Include physical, circumstantial and causal proximity)
Finally, there should not be any policy considerations which would negate the existence of a duty of care
Policy consideration: Open to the defendant to argue that there are policy considerations which exist that should negate the existence of a duty
Breach of duty:
The plaintiff has now to establish the standard (or level) of care which the law expects of the Tortfeasor in the given situation
The standard of care which is expected is that of “a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs”
The doctrine of res ipsa loquitur. Generally, it is the plaintiff who bears the burden of adducing evidence to prove that the defendant has not met the standard of care expected and has therefore beached the duty of care. The doctrine of res ipsa loquitor (the things speaks for itself) may assist the plaintiff in establishing his case without having to do this. Where the doctrine operates, the plaintiff only needs to show that he has suffered loss or damage from the incident. the burden of