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A Claim In The Tort Of Negligence

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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 …show more content…

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 …show more content…

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

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The law of tort applies duties of the civil law in respect to a wide range of behavior which are relevant to a business activity, this area of law serves a very important role for consumers and those are doing business with them. As stated above in order to have a sure fire claim when claiming under the tort of negligence it is compulsory to fulfill the three requirement, the first requirement is the " duty of care " it is stated that whether the defendant owes the plaintiff a duty of care, is definitely a question of the law. it is always onus that the plaintiff establish the existence of a duty of care, but usually in most cases it is very straightforward to establish a duty of care, as long as it is provided that the relationship between parties falls within the duty of care for example a doctors owes a duty of care to his/her patients, or motorist owe a duty of care to the other road users, even architects owe a duty of care to the people who are occupying the specific building, these are just few examples of owing a duty of care. if the relationship between the parties does not fall within the established duties of care, than the plaintiff needs to be able to show the 2 things which are (1) '' it was reasonably foreseeable that the defendant act or omission could cause harm to someone in the plaintiff's position ", which means that it the plaintiff must be able to show that during the time of the incident it was reasonably foreseeable that the defendant's code of conduct could cause harm to someone in the plaintiff's position.

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