Negligence

In order to advise XXX any claims he may have in torts, it is necessary to determine if such negligence exists. To sue for negligence, the burden of proof is on the plaintiff who has suffered damage to establish the following four prerequisites based on the evidence:

1) A duty of care owed by the defendant to the plaintiff;

2) Breach of the duty of care by the defendant;

3) Plaintiff suffered damage resulting from the breach; and

4) The damage suffered was a foreseeable consequence of the breach that the connection between the damage and the breach were not too remote.

1) The first question of fact is “Did the defendant owe the plaintiff a duty of care?”

Under the Common Law:

Donoghue v Stevenson

Under the common law, whether or not the defendant owed to the plaintiff a duty of care is based on the neighbour principle established in the precedent case of Donoghue v Stevenson [1932], which affirms that a sufficiently close relationship (neighbour relationship) between the parties can give rise to a duty of care.

According to Donoghue v Stevenson [1932], neighbour refers to the persons who are so closely and directly affected by one’s act that one ought reasonably to have them in contemplation as being so affected when directing mind to the acts or omissions.

In other words, a duty of care arises when persons in a reasonable contemplation are ought to take reasonable care to avoid acts or omissions which can be reasonably foreseen as likely to injure their neighbours who are proximate to them.

On the other hand, a reasonable foreseeability of the risk, defendant’s knowledge of the risk, plaintiff’s reasonable reliance on the defendant’s actions and plaintiff’s vulnerability can also point to a duty of care being owed.

Under the Statute Law (legislation):

Civil Liability