Applied Law - QCF (Edexcel)

More Damages

Tort is the French word for wrong and in this context it refers to a civil wrong, in civil law this is defined when one party has an issue with another party, and the party who was subject to the grievance becomes the claimant, and the party who the claimant is trying to prove the other party also known as the defendant that they're in the wrong.

One form of tort law is negligence, negligence is when proved means that the defendant has failed to take the reasonable care as a person or a business to avoid injury or any kind of loss to the claimant, in order to proof that negligence has taken place the claimant must be able to prove that the defendant has taken the correct measures to protect the claimant within their rights, negligence is measured with the following: duty of care, breach of duty and damage.

Before a defendant can be found negligent, a form of 'duty of care' must be applied to the claimant by the defendant, in the case Donahue v Stephenson (1932), this was shown, this case involves claimant Donahue and defendant Stephenson. Donahue had ginger beer and ice cream in a cafe, the contents of the beer were unforeseeable as it was in a bottle that didn't show the contents, after drinking the beer Donahue poured the rest on her ice cream, and to her surprise a decomposed snail floated out, due to this incident Donahue faced alleged shock and suffered from severe gastro-enteritis, as there was no consumer contract between Donahue and Stephenson, the claimant couldn't claim any kind of compensation and because of this but she took the case further and as a result the neighbourhood principle was created by a judge by the name of Lord Atkin.

The neighbourhood principle was established from the bible quote "love thy neighbour", introducing the law "you must not injure your neighbour", for this test to stand two factors need to be established one of which being a reasonable foresight of harm and this is to test whether it was logically possible for the defendant to foresee the damage of the claimant and then, this leads on to whether or not the defendant and claimant have a relationship of proximity between them to make the claimant liable to sue, proximity includes the distance between the defendant and the claimant during the timeframe of the case and if the type of relationship they have makes the defendant responsible for the claimant.

The Caparo test was initially developed from the neighborhood principle, it was created to establish duty of care, the caparo test is split up into three sections: foresight, proximity and fair, just and reasonable, although the Caparo test is a result of the neighbourhood principle, it is also an extension, the case that helped develop this test is the case is the case of Caparo Industries v Dickman (1990) this case involves claimant Caparo Industries and defendant Dickman, Caparo Industries bought shares of a company in Fidelity who made a pre-tax profit of £1.3 million but it came to light that Fidelity had made a loss of £400,000 but no duty of care was owed because of the fact that Fidelity weren't even aware of Caparo's existence meaning there was no proximity.

The foresight section of the Caparo test focuses on whether it or not was foreseeable that the defendant would cause any harm to the claimant, in some cases foresight is not applicable as the defendant can't predict the future when it's so unclear and unpredictable that they could possibly cause any damage to the claimant, in the case Haley v London Electricity Board (1965) foresight was applicable, the case involves claimant Haley, a blind man and defendant London Electricity board, the incident that led to this case involves a group of workers for the company who at the time were digging a trench in the pavement, during this time they went on a break and as they didn't have the resources to fence off the work being done on the pavement they thought it would be sufficient to leave an upright shovel to warn passers by of the work that was currently still proceeding, due to this claimant Haley tripped and fell in the trench and as a result became deaf, due to it being foreseeable that a blind man would walk down the street London Electricity Board were held responsible for their actions.