Negligence and tort law Essay Example | Topics and Well Written Essays - 1750 words

Negligence and tort law - Essay Example Where no duty is owed there can be no liability The Structure of Negligence The definition of negligence in ordinary parlance is carelessness. Its strict legal analysis was given by Lord Wright in Lochgelly Iron and Coal Co vs. McMullan (1934): â€Å"†¦.negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.† Negligence as a tort is that made up of a tripartite element structure: the defendant in being careless must have breached a duty, which results in damage and such damage mustn’t be too remote from the cause, (Feinman 2010, P. 34). To have breached a duty, the defendant must have owed it to the claimant and the defendant himself must have fallen below certain legal standards. The defendant’s actions must be tied to the legal injury suffered by the claimant such injury being worthy of compensati on. A judgement will be centred on these three concepts but that doesn’t necessarily mean that they are separate and distinct, they overlap to a great extent. Virtually anyone can be capable of negligence: an occupier of premises, a driver, manufacturers and retailers. The â€Å"general conception of relations† that give rise to a duty of care is as, per Lord Atkins, between neighbours. â€Å"Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected when I am directing my mind to acts or omissions which are called in question.†-Lord Atkins, Donoghue vs. Stevenson (1932). The duty of care generally extends only to individuals directly harmed and whose interaction with the tortfeasor is reasonably foreseeable, (University of London 2005, P.14). The conceptual structure of negligence tort has been agreed among scholarly circles to encompass five basic elements: the existence of a duty of a care, breach of this duty, factual causation, remoteness and finally legal injury. Duty of Care Until the recent case of Caparo Industries vs. Dickman (1990), duty of care was established by applying Lord Atkin’s Neighbour test from Donoghue vs. Stevenson (1932) which was at the root of the fault principle in Common Law jurisdictions. Lord MacMillan set out a new category of delict not particularly based on negligence per se but on the implied warranty of fitness of product, (Eren 2007, Para. 4). In Caparo vs. Dickman, the formula currently determining the duty of care as used by courts was founded. In the test, three things must be established: whether the consequences of the defendant’s act were reasonably foreseeable, whether there is a relationship of proximity between the parties, physical or legal and whether in all the circumstances it was just fair and reasonable that the law should impose a duty. In the case, economic loss due to negligent misstatement by a co mpany accountants was held remote as there was no proximity between accountants and those who would rely on their reports, (Smith & Burns