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Essay: Establishing a negligence claim

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  • Published: 2 August 2015*
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To establish a claim in Negligence, the Claimant must show that the Defendant owed them a duty of care, which means the Claimant must have been able to reasonably foresee that his actions would be likely to injure the Defendant, there was a sufficient proximity of relationship between the Claimant and Defendant, and that it would be fair, just and reasonable to impose such a duty [Donoghue v Stevenson (1932) AC 562 , Caparo Industries plc. v. Dickman (1990) 1 All ER 568].
The Claimant must then show that the Defendant breached that duty.  This means that the Defendant’s conduct fell below the standard of care that the (hypothetical) reasonable person would have taken in the same circumstances [Blyth v. Birmingham Waterworks (1856) 11 Exch 781; Hall v Brooklands Auto-Racing Club (1933) 1 KB 205].  Where the Defendant is a professional, the reasonable person will be attributed with a usual level of skill and competence of that type of professional [Bolam v Friern Hospital Management Committee (1957) 2 All ER 118].
There will only be a breach of duty where the Defendant could reasonably foresee a risk to the Claimant, and didn’t take the necessary precautions to prevent that risk [Bolam v Friern Hospital Management Committee (1957) 2 All ER 118].  .
The Claimant must show that the Defendant’s breach of duty has caused his loss, and if it has not, the claim will fail [Barnett v. Chelsea & Kensington Hospital Management Committee].  The ‘but for’ test is applied – but for the Defendant’s breach of duty, would the Claimant have suffered the harm?.  There must be no break in the chain of causation by a novus actus interveniens – an act of a third party, or novus causa interveniens – an extrinsic event, or the Defendant may not be liable for the Claimant’s injuries [Baker v. Willoughby (1969) 3 All ER 1528; Jobling v. Associated Dairies Ltd (1981) 2 All ER 752]. Further, the damage sustained by the Claimant must be reasonably foreseeable to the Defendent [Overseas Tankship UK Ltd v. Mort Docks and Engineering Co Ltd, The Wagon Mound No. 1 (1961) 1 All ER 404]. 

1. Donoghue v Stevenson (1932) AC 562  in Hepple, Howarth & Matthews, Tort Cases and Materials (5th Edition, 2000) p.28, Butterworths, London/Edinburgh/Dublin
2. Caparo Industries plc. v. Dickman (1990) 1 All ER 568 in Hepple, Howarth & Matthews, Tort Cases and Materials (5th Edition, 2000) p.41, Butterworths, London/Edinburgh/Dublin
3. Blyth v. Birmingham Waterworks (1856) 11 Exch 781 cited in Hepple, Howarth & Matthews, Tort Cases and Materials (5th Edition, 2000) p.403, Butterworths, London/Edinburgh/Dublin
4. Hall v Brooklands Auto-Racing Club (1933) 1 KB 205 cited in Hepple, Howarth & Matthews, Tort Cases and Materials (5th Edition, 2000) p.299 + 495, Butterworths, London/Edinburgh/Dublin
5. Bolam v Friern Hospital Management Committee (1957) 2 All ER 118 REF5].  63 in Resource Book 1 (Reading 4), W300: Law: Agreements, Rights & Responsibilities Manual 1, The Open University, Milton Keynes
6. Barnett v. Chelsea & Kensington Hospital Management Committee in Hepple, Howarth & Matthews, Tort Cases and Materials (5th Edition, 2000) p.345, Butterworths, London/Edinburgh/Dublin
7. Baker v. Willoughby (1969) 3 All ER 1528 in Hepple, Howarth & Matthews, Tort Cases and Materials (5th Edition, 2000) p.361, Butterworths, London/Edinburgh/Dublin
8. Jobling v. Associated Dairies Ltd (1981) 2 All ER 752 in Hepple, Howarth & Matthews, Tort Cases and Materials (5th Edition, 2000) p.364, Butterworths, London/Edinburgh/Dublin
9.  Overseas Tankship UK Ltd v. Mort Docks and Engineering Co Ltd, The Wagon Mound No. 1 (1961) 1 All ER 404 in Hepple, Howarth & Matthews, Tort Cases and Materials (5th Edition, 2000) p.400, Butterworths, London/Edinburgh/Dublin

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