A Claim In The Tort Of Negligence

The issue that this essay will deal with is whether Benedict has a claim in the tort of negligence and is entitled to damages. Negligence provides a remedy for claimants who suffer damage because of a person’s failure to use reasonable care. To succeed in a claim, the claimant must prove three vital elements.

The first hurdle to establish is that the defendant owed the claimant a legal duty of care. This can arise from an established duty situation such as doctor/patient or a defendant assuming responsibility towards a claimant. Generally, it will be obvious on the facts but, there are several tests to help recognize a duty.

Lord Atkin’s neighbour principle formulated in Donoghue determined a duty of care and, laid down the requirement

However, the duty situation is not so obvious in the circumstances, when on a field trip would she still owe this duty? yes, by taking the students on the field trip Jenifer voluntarily assumed responsibility towards the students .

The Caparo test will confirm this duty: It was reasonably foreseeable that the students would rely on Jenifer’s advice and may suffer personal injury because of that reliance. There is sufficient proximity between Jenifer and Benedict because of their close relationship. It would be ‘fair, just, and reasonable to impose a duty’ on Jenifer but, may open floodgates to similar claims. It can be concluded; a duty is established.

Secondly, there must be a breach of duty, this is objectively assessed on the balance of probabilities. Firstly, in law how should the defendant have behaved in the circumstances? Secondly, in fact how did the defendant behave, and did there conduct fall below the reasonable standard of care

Additionally, benedict’s personal injury was a foreseeable consequence of Jenifer’s actions and not to remote.

Despite all of this said, the defendant can escape liability if they prove a valid defence. The defence of ‘volenti’ will completely distinguish a claim and concerns a claimant’s exercise of free choice by assuming the risk. The claimant must be aware of the risk and freely consented to it.

Arguably, Benedict had a free choice whether to accept the risk or not. However, the defence of ‘volenti’ would be hard to prove because debatably Benedict was unaware of the risk and so, could not have consented to it as Jenifer’s statement created a ‘false sense of safety’.

There is also the defence of contributory negligence which will reduce compensation payable. This arises where the claimant causes or contributes to their own harm by failing to take reasonable care for their own safety. This is assessed by asking what the reasonable person in the circumstances of the claimant would have done to avoid injury. For example, instead of jumping off an indoor climbing wall the claimant could have used the ladder as in the case of