Chapter 2: Elements Of Negligence Law

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It is necessary to have a conceptual framework which helps lawyers to decide whether there is the basis of a claim or possibility of a good defence. Negligence suits have historically been analyzed in stages, called elements. In order to establish in an action of negligence, the claimant must prove each of the following elements:
(i) Duty of care.
(ii) Breach of duty.
(iii) Damage- causation and remoteness.

Duty of care refers to the circumstances and relationships which the law recognizes as giving rise to a legal duty to take care. A failure to take such care can result in the defendant being liable to pay damages to the injured party or who has suffered loss as a result of their breach
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The basis of the case was that the manufacturer owed a duty of care to the consumer, such that there was no harmful substance in his product, that he ahd breached his duty of care and that the appellant had suffered injury as a result.
The House of Lords reviewed the few precedents and by a majority of two out of three decided in favour of the appellant, thus establishing the existence of tort of negligence for the first time.
However, although it is possible to find cases in which it is arbitrated purely on the basis of foresight that a duty of care exists, it is too primitive to consider foresight or ‘reasonable contemplation of harm’ alone is the test to prove the presence of duty of care. For instance, in Marc Rich & Co. v Bishop Rock Marine , the House of Lords were of the view that, whatever be the nature of the harm caused, the court should consider foresight, proximity and whether in all the circumstances it is fair, just and reasonable to impose a duty of care.

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In the case Yuen Kun Yeu v AG of Hong Kong (1978) , Lord Keith referred to proximity as a synonym for foreseeablity on one hand, and on the other as referring to the whole concept of the relationship between the claimant and the defendant as described in Donoghue v Stevenson by Lord Atkin. Proximity plays an important role in the reasoning in many cases which deal with the extent of liability of economic loss caused by negligent misstatement. It has also been considered as important in relation to the scope of duty of care in omissions rather than positive acts. In the case of Canadian National Railway v Norsk Pacific Steamship Co (1992), the majority judges in the Canadian Supreme Court went on to reject a general test of proximity as a test for liability pertinent throughout the law of negligence. Thus the concept of proximity is but one of the factors which may apply in the process of judicial reasoning , whereby the judges are able to arrive at the decisions which they believe to be just in individual cases. Proximity has proved to be very important in determining whether a duty of care exists in nervous shock cases or
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