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

thoughtlessness and tort law - examine ExampleWhere no duty is owed there can be no liability The Structure of Negligence The definition of negligence in ordinary parlance is slapdashness. Its strict legal analysis was given by Lord Wright in Lochgelly Iron and Coal Co vs. McMullan (1934) .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 mustnt 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 defendants actions must be tied to the legal smirch suffered by the claimant such injury being worthy o f compensation. A judgement will be centred on these three concepts but that doesnt 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 general conception of relations that give rise to a duty of care is as, per Lord Atkins, between neighbours. 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 tho 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 agree among scholarly circles to encompass five basic elements the existence of a duty of a care, breach of this duty, real causation, remoteness and finally legal injury. Duty of Care Until the recent case of Caparo Industries vs. Dickman (1990), duty of care was found by applying Lord Atkins 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 especially based on negligence per se but on the implied warranty of fitness of product, (Eren 2007, Para. 4). In Caparo vs. Dickman, the aspect 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 defendants 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 likely that the law should impose a duty. In the case, economic loss due to negligent misstatement by a company accountants was held remote as there was no proxi mity between accountants and those who would rely on their reports, (Smith & burn down