This assignment will establish the elements needed for a person to be held liable in Tortious Law. Once the elements have been established they shall then be used to determine if the individuals in each scenario would be held liable. Tort Law
Tort Law in layman’s terms is a civil wrong. It does not necessarily need to be an illegal action but an action that has consequently caused harm or suffering to another. The main outcome for a person claiming they have been a victim of a tortious act is compensation. For a successful tort claim the three main elements need to be present and their needs to be a standard of proof; a balance of probabilities. The Necessary Elements
As followed in Donoghue v Stevenson  AC 562
i. Duty of Care
ii. Breach of Duty
iii. Damage caused by Breach of Duty.
This coincides with the three part test established in case that leads precedent in tortious liability, Caparo Industries Plc v Dickman  1 All ER 568. i. Foreseeability of Damage
ii. A relationship characterised by the law as one of proximity or neighbourhood. iii. A relationship characterised by the law as one of proximity or neighbourhood
Duty of Care
Duty of care prior to 1932 was restricted to situations where a relationship had already been established such as a doctor-patient relationship. However in Donoghue v Stevenson that duty of care became adapted. Lord Atkin formulated a principle known as the ‘neighbour test’; ‘take reasonable care to avoid act or omissions which you can reasonably foresee would be likely to injure your neighbour’ This meant that the tortfeasor must foresee how their actions could possibly affect the claimant and to avoid doing so. He continued to define ‘neighbours ‘as; “ persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation ” Sometimes it is hard to establish a duty of care such as in - Nettleship v Weston  QB 691. The court had to first establish, whether the standard of care applied to a competent driver must be the same as that applied to a learner driver, before they could establish whether a duty of care was owed. Foreseeability (Bolton v Stone  AC 850) and proximity (Bourhill v Young  AC 92.) are both significant to determine a duty of care. Breach of Duty
Breach of duty identifies whether or not the tortfeasor has breached the duty by not reaching the standard of care required. This was defined in Blyth v Proprietors of the Birmingham Waterworks  11 Exch 781. Alderson held ‘the omission to do something which a reasonable man guided upon those considerations….would do’ When trying to determine whether or not the tortfeasor has breached the duty of care owed they ask not if it was foreseen by the tortfeasor but would it have been forseseen by the reasonable man? The reasonable man being identified by Greer; “The person concerned is sometimes described as ‘the man on the street’ or ‘the man on the Clapham omnibus’, or ……the man who takes the magazines at home and in the evening pushes the lawnmover in his shirt sleeves.” Hall v Brooklands Auto-Racing Club  1 KB 205
There are exceptions to the rule of the ‘reasonable man’. In some circumstances a different standard of care is assigned such as if the tortfeasor was to have a special skill, profession or expert field. Then the reasonable man would be someone deemed to have the same skill, profession or expertise as the tortfeasor. A lead case in the standard of care of required of an expert is that of the Bolam Test and is defined by Mcnair J “A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion….A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view” Bolam v Friern Hospital Management Committee  1 WLR
Bibliography: Turner,C.Hodge,S. (2004). Unlocking Torts. 3rd ed. Italy: Hodder Education.
Hepple, B.Howarth,D.Matthews, M. (2000). Tort Cases and Materials. 5th ed. London: Butterworths
Cooke, J. (2011). Law of Tort. 10th ed. England: Pearson Education.
Wacks, R (2008). Law. A very short Introduction. United States: Oxford University Press.
Please join StudyMode to read the full document