3 The Tort of Negligence
Learning objectives
On completion of this Chapter, you should be able to:
- Describe the tort of negligence
- List and explain the necessary elements required to establish negligence
- Identify the defences a defendant can raise in an action for negligence
- Identify and discuss the application of the tort of negligence to:
- Occupier’s liability
- Strict liability
- Vicarious liability
- Product liability
- Breach of statutory duty
- The Rule in Rylands v Fletcher.
Watch this short video (4:07 minutes) which will give you a brief overview of “What is Negligence’’? and will help you better understand the rest of the chapter.
“What is Negligence’’? video by Sharon Sanders, Centre of Teaching and Learning at Southern Cross University, licenced under CC BY-NC-SA 4.0
The transcript for this video is located under the Video transcripts and PDFs heading in the Back Matter of the book.
Key terms
Here are some terms you will encounter in this Chapter, which will help you understand the topic of negligence:
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- Contributory negligence: negligence by the plaintiff that has contributed to their loss, damage or injury.
- Negligence: an indirect interference with the person or property of the plaintiff.
- Negligent misstatement: a false or inaccurate statement of fact made by a person recklessly or knowingly that there were no reasonable grounds for such a belief.
- Occupier’s liability: as an occupier of premises, whether you own or rent, if you have control over the property, you must take reasonable care to ensure anyone who comes onto your premises is reasonably safe, although what is reasonable will vary according to the circumstances.
- Product liability: as far as manufacturers are concerned, at common law they owe a duty of care to consumers who purchase their goods and that the goods are fit for purpose. There is an overlap here with the Goods Act 1951 and the Independent Consumer and Competition Act 2002 which provide protection for the consumer.
- Res ipsa loquitor (‘the facts speak for themselves’): a doctrine that provides that the elements of duty, breach and damage can sometimes be inferred from the nature of the accident even though the exact act of negligence cannot be exactly identified.
- Strict liability: liability regardless of fault where the defendant is held liable even though they were not at fault.
- Tort: a civil wrong other than a claim for a breach of contract.
- Vicarious liability: where a person is held responsible for the acts or omissions of another even though they may not have personally been at fault (for example, employer and employee).
- Voluntary assumption of risk: where the plaintiff freely and voluntarily understood and assumed the risk that caused the injury.
Introduction
Just note that when reading this chapter that you, the reader, will be treated as being the plaintiff unless otherwise stated.
Chapter 3 begins by considering what a tort is and the basis on which it operates; that is, thro