ACCA LW ^Eng Syllabus B. The Law Of Obligations - Explain The Tort Of Negligence - Notes ^{3 / 5}

To be sued for being negligent the claimant must prove:

1. You owed a duty of care to the claimant

2. You breached that duty of care

3. The breach caused harm

4. The losses made by the claimant weren't too remote

Now let's look at those things individually - starting with a Duty of Care

You are only liable if you owe a duty of care..

Donoghue v Stevenson (1) stated 'you owe a duty of care to anybody who it may be reasonably foreseen will be affected by your negligent acts'

So notice that means NO CONTRACT IS NECESSARY

Caparo v Dickman (2) defined a three stage test would show whether you owe a duty of care or not to someone:

1. Was the harm caused reasonably foreseeable?

2. Is there sufficient proximity between the defendant and the claimant?

3. Would it be fair, just and reasonable to impose a duty of care?

Now let's look at the 2nd item - Did you breach that duty of care?

Breaching a Duty of Care

To see if you've breached your duty of care - you basically didn't do what a reasonable man would have done

This vague idea is helped by the following rules:

• You're a Skilled person? If so then your duty of care is higher

  ie a qualified accountant owes a higher duty of care to a client than an unqualified bookkeeper

• The Likelihood of injury is high? If so then your duty of care is higher

  The higher the likelihood of injury, the more the defendant will have to do to fulfil his duty Bolton v Stone (4)

• The Seriousness of the risk is high? If so then your duty of care is higher

  The more serious the risk, the more the reasonable man would do to mitigate this Paris v Stepney (5)

• The Cost of precautions against breaching is high? If so then your duty of care is lower (if the cost is greater than the risk involved)

  The foreseeable risk must be balanced against the cost of eliminating the danger Latimer v AEC Ltd

• Did you follow common practice? If so then your chances of being found liable due to breach is lower 

  Eg an auditor who followed ISAs - it is likely that they would have met their duty of care

• Was your so called negligent act for a Social Benefit? If so then your chances of being found liable due to breach is lower 

  Eg The Police speed in a car to help against a public disturbance

This means "The Facts Speak for Themselves!"

So the nature of the case is so obviously a breach of duty that it is now up to the defendant (not the claimant), in the balance of probabilities, to prove they have not acted negligently

Think of a surgeon who leaves his scalpel inside a patient - so obvious is it that he seems to have breached his duty of care that it is now up to him to prove otherwise