1.
Negligence is the breach of duty of care, which one person owed to another, due to the possibility of the actions of the first person injuring or harming the second person, and does actually result in harm or injury to such other person. In simple terms, it means the failure in taking the proper care for something (Strong and Williams, 2011).
2.
Duty of care is an important element which has to be established before the court of law to make a case of negligence against the defendant. In this regard, different tests have been given which help in determining the existence of duty of taking the reasonable care.
Neighbour Principle
The neighbour test was given in Donoghue v Stevenson [1932] AC 562 and in this case two requirements were established for showing that a duty of care was owed by the defendant to the plaintiff. These two requirements are of reasonable foreseeability of risk of harm, and the relationship of proximity between parties. So, in order for the defendant to take reasonable care in undertaking the actions, the chances of injury happening have to be foreseeable in a reasonable manner. The second requirement is for presence of proximity between the parties, as per which, the actions of the defendant need to have the capability of injuring the plaintiff. Relationship of proximity is present between consumer-manufacturer, employer-employee, and the like. So, where the parties have such relationship that it can be reasonably foreseen that acts of one would injure the other, a duty of care would be present based on this test (Martin and Lancer, 2013).
Modern day test
The other prominent test which is used for the purpose of holding the presence of duty of care was also given in the case of Donoghue v Stevenson and this test goes beyond establishing duty of care and towards making a claim of negligence in a successful manner. The statement made in the quoted case formed the basis for the modern law of negligence. As per the modern law of negligence, for making a successful case of negligence, there is a need to show that a duty of care was owed by the defendant to the plaintiff, the duty of care was breached by the defendant, the contravention resulted in damages being caused, and the damage caused is not too remote. So, this test essentially provides the different elements of negligence, which have to be presented before the law in order to uphold a successful claim of negligence (Lunney and Oliphant, 2013).
The duty of care is established through the neighbour principle, but this test requires other things to be shown as well. This is the reason why the elements of negligence include duty of care, its breach, and resultant harm, remoteness of loss, proximity, reasonable foreseeability, direct causation and loss being substantial. For each of these elements, different tests or case laws provide when these would be deemed to be present. Thus, for making a successful claim of negligence and getting awarded damages as remedies, the modern day test has to be fulfilled by the plaintiff (Greene, 2013).
References
Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.
Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press.
Martin, J., and Lancer, D. (2013) AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK.
Strong, S.I., and Williams, L. (2011) Complete Tort Law: Text, Cases, & Materials. 2nd ed. Oxford: Oxford University Press.
