Tort of Negligence - duty of care

Tort of negligence

if one person is injured or suffers physical damage to his property through the carelessness of another, he may be able to bring an action in negligence. Negligence is a tort (or civil wrong) and it is one of the commonest and most important civil actions

to win a claim for negligence, the claimant must show that:

• the defendant owed a duty of care to the claimant

• the defendant breached that duty of care

• damage was caused to the claimant as a result of this breach

duty of care

'duty of care' is a legal phrase which means that one person has a responsibility to take proper care not to injure or cause loss to another. This known as the neighbour principle – the legal duty to take care not to harm your 'neighbour' – 'someone so closely and directly affected by what I do that I ought to have them in contemplation' - Lord Atkin. & was established in

Donoghue v Stevenson 1932

the claimant had fallen ill after drinking ginger beer bought for her by her friend. The ginger beer was poisoned because it contained a decomposed snail, which the claimant couldn’t have seen because you couldn’t see through the bottle. Held: the claimant could sue the manufacturers of the ginger beer as the manufacturer owed a duty of care to ensure that its products were safe to drink

three part test – an extension of the neighbour principle

to prove a duty of care exists there must be

1. forseeability

is it reasonably foreseeable to the defendant that his negligence will cause injury, damage or loss to the claimant

• manufacturer > consumer – it is reasonably foreseeable that what a manufacturer does will affect the consumer Donoghue v Stevenson

• motorist > other road users

• doctor > patients

• solicitor > clients

1. proximity

closeness in time/space or relationship – is the claimant directly affected by the defendants actions

Bourhill v Young 1943

The claimant was a pregnant fishwife. She got off a tram and as she reached to get her basket off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant…