Principles of Tort Law

INTRODUCTION

The framework for negligence

In order to prove the cause of action in negligence, C must establish four requirements, viz:

Nutshell analysis: The tort of negligence

This, and the following three chapters, deal solely with the first element – the establishment of a duty of care – in a variety of scenarios. English courts have long drawn a distinction between the existence of a duty of care in the context of loss caused by physical injury or property damage, on the one hand (the subject of analysis in this chapter); and where economic loss or psychiatric injury is caused, on the other. In the latter scenarios, special rules apply for the establishment of a duty of care, which are the subject of consideration in Chapters 4 and 5, respectively.

In JD v East Berkshire Community Health NHS Trust, Lord Rodger somewhat pessimistically remarked that, ‘the world is full of harm for which the law furnishes no remedy’. That lack of remedy may be entirely attributable to the lack of any duty of care (as it was in JD itself). In that regard, this element is a very important control mechanism in restricting D's liability for the tort of negligence – and its use in restricting the ambit of liability has become a more modern trend. A lack of duty can preclude D's liability in negligence, even where every other element of negligence is satisfied by C.