CAPE LAW MODULE ONE (1)

1. CAPE LAWMODULE ONE (1) LAW OF TORT NEGLIGENCE

2. DEFINITION Negligence in law occurs where a person (the defendant) breaches his legal duty of care to another person (the plaintiff/claimant) and causes damage to the plaintiff/claimant which is not too remote. Not every act of negligence is actionable.

3. Elements of Negligence 1. DUTY OF CARE 2. BREACH OF DUTY 3. DAMAGE WHICH IS NOT TOO REMOTE

4. DUTY OF CARE The Neighbour Principle Lord Atkinin Donoghue v Stevenson (1932) “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour?...persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions… in question.”

5. BREACH OF DUTY Alderson B in Blyth v Birmingham Waterworks Co.(1843) “ …the omission to do something which a reasonable man,guided upon these considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

6. Factors in assessing the standard of care expected (a)The likelihood of harm Bolton v Stone (1951) (b) The seriousness of the risk Paris v Stepney(1951) (c) The utility or importance of the defendant’s conduct Watt v Hertfordshire CC (1954) (d) The cost and practicability of measures to avoid harm Latimer v AEC Ltd. (1952)

7. RES IPSA LOQUITUR • This means ‘the facts speak for themselves.’ Scott v London and St. Katherine Docks Co. (1865) • Requirements: (a) The damage was caused by something under the management or control of the defendant or his servants. (b) The accident was of a kind which would not occur in the ordinary course of things unless there was negligence on the defendant’s part.

8. CAUSATION The claimant must show a nexus (link) between the breach and the damage. The ‘but for’ test Barnett v Chelsea and Kensington Hospital Management Committee (1969) The defendant is liable if but for his actions, the harm would not have occurred. However, the defendant is not liable if but for his action, the harm would still have occurred.

9. ‘Thin/Egg Shell Skull’ Rule This means that the defendant must ‘take his victim as he finds him.’ The defendant is liable for the full extent of the damage where the claimant’s extra sensitivity caused damage which is even worse than it would be under normal circumstances. Paris v Stepney BC (1951) Smith v Leech Brain Ltd. (1962)

10. NOVUS ACTUS INTERVENIENS This means ‘a new act intervenes’ i.e. the chain of causation is broken by a subsequent act which the court accepts as the true cause of the damage. The are three (3) types of intervening act: • An act by a third party • An ‘Act of God’ • An act by the claimant.

11. REMOTENESS OF DAMAGE The claimant may fail to recover for damage which is too remote a consequence of the breach. The ‘reasonable foreseeability’ test The Wagon Mound (No. 1) (1961)

12. NEGLIGENT MISSTATEMENT Hedley Byrne v Heller & Partners Ltd. (1964) The criteria laid down in the above case for allowing liability: (a) The existence of a special (fiduciary) relationship between the parties (b) The person giving advice possesses a special skill in the area of advice given (c) There was reasonable reliance on the advice.