Basic principles of the Tort of Negligence

1. What are the differences between Contract and Tort?

1) Requirement for the contact: offer acceptance and consideration between the parties to form a legally binding agreement. (whereas in tort, there is no agreement between the parties) The parties are known to each other, and they are consensus parties. The compensation for breach of contract is to put the eviction in a position as if the obligations were fulfilled. 2) Tort is a wrongful act or omission for which damages can be obtained in a civil court by the person wronged. Wrongful act or omission which caused personal injury or property damage. The wrongful act or omission can be intentional or negligent. There is no agreement between the parties for an action in tort.

2. What are the 3 elements for a negligent action?

1) The defendant owes a duty of care to the plaintiff.

Means-a person has a legal obligation to take care when he can foresee a loss occurring if he acts carelessly. The duty of care is owed to one’s neighbour (neighbour principle in Donohue --v- Stevenson case) – ie those person that are or should be in the contemplation of the defendant as likely to be affected by the defendant’s act or omissions.

2) The defendant was in breach of the duty of care.

In determining whether the defendant has breached the duty of care, there are 2 stage processes, ie: a. The court has to establish the standard of care that an average reasonable person or a person professing special skills should have taken in the circumstances. This test is objective, ie it dose not take into account what the defendant might have considered to be reasonable in the situation. b. The Court then determines whether the defendant has met the standard established above.

3) The plaintiff suffered damages flowing from the breach.

The loss that the plaintiff has suffered must be caused by the defendant’s breach of duty of care. It must not be too remote.

3. Case Study Questions: a. What is Best Shoes Ltd’ cause of action against Jack for the damaged shoes?

Best shoes- plaintiff- person who commence the legal