Introduction to Tort of Negligence
Questions:
1. Whether Brian and Ros can take action under tort of negligence for injury they suffered in the house?
2. Whether Eon Financial Services own any duty of Care towards paul?
Whether Brian and Ros can take action under the tort of negligence for the injury they suffered in the house?
Tort is considered as legal wrong under which one person commit any wrongful conduct against another person. The usual remedy under tort is award of damages.
The tort of negligence is the legal action which can be brought by a person towards whom defendant owned a duty of care. Liability of defendant arises in the situation when duty to take care exists and breach of such duty results in damages. Tort of negligence includes three elements, and for making claim under tort of negligence plaintiff must prove these elements:
The duty of care- Defendant must owned duty of care towards the plaintiff. Duty of care is considered as legal obligation for the purpose of avoiding causing harm and it exists in the situation when harm is reasonably foreseeable in nature in case care is not taken[1]. For the purpose of duty of care to be exists there must be sufficient relationship of closeness must be present between the two people Donoghue v Stevenson 1932 AC 562[2]. This can be understood through example, relationship between road user and driver and relationship between doctor and patient.
Case law is considered as important case for understanding the duty of care. In this case, Lord Atkin states the general principle in context of tort of negligence. Individual must take care to avoid any such act or omission which they can reasonably foreseeable would cause injury to their neighbor.
For this purpose, neighbor was the person who directly affected by the act of the individual and those also who individual reasonably thought to have them in observation as being so affected when individual direct their mind to acts or omissions which were called into question.
This statement introduces two tests, foreseeability test and the proximity test. Proximity stands for closeness, which means whether person is closely or directly affected is known as the proximity test. In other words, plaintiff and defendant must have some level of closeness and such closeness must be the result of their relationship.
On the other hand, foreseeability test includes those acts or omissions which can reasonably foresee. This test states that individual was under obligation to avoid any such act or omission which causes injury to another person and such injury was reasonably foresee. This can be understood through case law Chapman v Hearse (1961) 106 CLR 112.[3]
Duty of Care
Breach of duty- another element includes the breach of duty of care owned by defendant. In this Court consider whether such duty of care is breached by the defendant. For this purpose, Court considers the standard of care expected in those situations from the defendant. Court determines the standard of care by considering the actions of any other reasonable person in the similar situation. This can be understood through case law Vaughan v Menlove (1837) 3 Bing NC 467[4]. In this case, Court held that best judgment taken by defendant was not enough, and he must judge by the standard of any reasonable man.
Breach of duty causes damage- there are number of cases in which it is easy to determine the reason which cause injury, such as if any individual breaks his back by slipping on the wet floor then there is clear connection between the wet floor and injury suffered by individual. However, in some cases it is difficult to determine the action which caused injury. This can be understood through case law Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428[5]. In this case, court held that hospital was not liable because of the failure of the doctor to examine the patient which causes death of the patient.
Remoteness of damages- this states that liability of the defendant arises only in those situations when any such loss occurred which was foreseeable in nature. This can be understood with the help of the case law The Wagon Mound no 1 [1961] AC 388 House of Lords.[6] [7]
In the present case, Brian and Ros can take action under tort of negligence against the Michael and Belinda, because they booth own duty of care towards the rented couple in their house. In this case all the elements of negligence are satisfied:
- Both Michael and Belinda owns duty of care towards the Brian and Ros because both the test are satisfied in this case foreseeability test and the proximity test. Under proximity test, Brian and Ros closely or directly affected from the actions of Michael and Belinda. On the other hand, while allowing the design of stairs foreseeability test is applied and under this test individual is under obligation to avoid any such act or omission which causes injury to another person and such injury was reasonably foresee. In this case, injury was foreseeable in nature. They also failed in foresee the harm related to power board.
- Both, Michael and Belinda fail in ensuring the reasonable standard of care while approving the design of the staircase and also in case of power board. Therefore, they breach the duty they owned towards the Brian and Ros.
- Breach of duty also causes damages to the brain and Ros, as Brain suffered burn on her harm because of explosion of Power board, and Brian suffered that much injury by failing from the stairs.
- In this case, both the situations are foreseeable in nature. Therefore, damages are remote.
It can be said that both Michael and Belinda are liable for breach of duty of care towards the Brian and Ros.
Conclusion:
After considering the above facts, it can be said that Brain and can take actions against the Michael and Belinda for tort of negligence.
Whether Eon Financial Services own any duty of Care towards Paul?
Tort of negligence is considered as legal action which can be taken by person against another person if such another person owned duty of care towards the former person. Liability arises in the situation when duty of care exists and such breach of duty cause damage to the plaintiff.
Elements of Tort of Negligence
In case law Donoghue v Stevenson 1932 AC 562, Mrs. Donoghue and her friend went to the café and her friend purchased bottle of ginger beer for Mrs. Donoghue. This bottle was sealed and it was not possible to inspect the contents of the bottle. Later, Mrs. Donoghue find decomposed snail in the bottle of ginger beer because of which she suffered gastroenteritis and nervous shock. She bought action against the manufacturer of the ginger beer.
In this case, Court considers the relationship in following manner:
- Steveson, manufacturer of the beer sold beer to the shopkeeper. In this contract exists and remedies were available in the law for breach of the terms of contract.
- Shopkeeper sold bottle of ginger beer to the friend of Mrs. Donoghue. In this also contract exists.
- Friend of Mrs. Donoghue gift bottle of ginger beer to Mrs. Donoghue There was no contract, and no remedies are available.
In this case, Court held that Mrs. Donoghue can bring action against the manufacturer under tort of negligence. In this case, Lord Atkin states the general principle in context of tort of negligence. Individual must take care to avoid any such act or omission which they can reasonably foreseeable would cause injury to their neighbor. For this purpose, neighbor was the person who directly affected by the act of the individual and those also who individual reasonably thought to have them in observation as being so affected when individual direct their mind to acts or omissions which were called into question.
This statement introduces two tests, foreseeability test and the proximity test. Proximity stands for closeness, which means whether person is closely or directly affected is known as the proximity test. In other words, plaintiff and defendant must have some level of closeness and such closeness must be the result of their relationship[8].
In this case, Paul can take action against the Eon financial services under tort of negligence because in case of Donoghue v Stevenson court stated individual must take care to avoid any such act or omission which they can reasonably foreseeable would cause injury to their neighbor. For this purpose, neighbor was the person who directly affected by the act of the individual and those also who individual reasonably thought to have them in observation as being so affected when individual direct their mind to acts or omissions which were called into question.
In this case also, Paul is the neighbor of Eon financial services because he directly affected from the advice of Eon. Therefore, Paul can take action against the Eon.
Conclusion:
Eon financial services is liable to pay damages to the Paul for losses suffered by paul from the advice of Eon.
Websites
Legal services Commission, Negligence, < https://www.lawhandbook.sa.gov.au/ch01s05.php?>, accessed on 11th January 2018.
Law Vision, The Law of Torts, < https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>, Accessed on 11th January 2018.
Fandon, Donoghue v Stevenson, < https://casebrief.wikia.com/wiki/Donoghue_v_Stevenson>, Accessed on 11th January 2018.
Case law
Donoghue v Stevenson 1932 AC 562.
Chapman v Hearse (1961) 106 CLR 112.
Vaughan v Menlove (1837) 3 Bing NC 467.
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428.
The Wagon Mound no 1 [1961] AC 388 House of Lords.
[1] Legal services Commission, Negligence, < https://www.lawhandbook.sa.gov.au/ch01s05.php?>, accessed on 11th January 2018.
[2] Donoghue v Stevenson 1932 AC 562.
[3] Chapman v Hearse (1961) 106 CLR 112.
[4] Vaughan v Menlove (1837) 3 Bing NC 467.
[5] Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428.
[6] The Wagon Mound no 1 [1961] AC 388 House of Lords.
[7] Law Vision, The Law of Torts, < https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>, Accessed on 11th January 2018.
[8] Fandon, Donoghue v Stevenson, < https://casebrief.wikia.com/wiki/Donoghue_v_Stevenson>, Accessed on 11th January 2018.
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