1. English for Lawyers 3 Lecturer: Miljen Matijašević
G10, room 6/I, Tue 11:30-12:30
Session 5, 31 Oct 2017

2. The Law of Torts
(cont.)

3. The Law of Torts How can we define a tort?
What can happen as a consequence of tortious conduct?
Compare:
trespass to land and nuisance
assault and battery
false imprisonment and defamation
libel and slander

4. Negligence

5. Concept of negligence
involves situations where a lack of care by a person who was expected to provide it causes damage to another
developed in English law in 1932 by the House of Lords
Donoghue v Stevens [HL 1932], a.k.a. the Paisley snail case

6. Concept of negligence Donoghue v Stevens (HL 1932)
Lord Atkin – the ‘neighbour principle’
„You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
Who does Lord Atkin refer to as a ‘neighbour’?

7. Concept of negligence
negligent conduct may entail legal liability and warrant the payment of damages
key concepts:
duty of care
reasonable foreseeability of harm (reasonable foresight)
standard of care
breach of duty of care

8. Duty of care and reasonable foresight
Think of situations which probably involve a duty of care!

9. Duty of care and reasonable foresight
reasonable foreseeability of damage caused by a lack of care suggests there probably is a duty of care
reasonable foresight – harm that can reasonably be expected
Think of examples of such harm and harm which might not be reasonably expected in a possible duty of care situation!

10. Standard of care
judging whether a duty of care was breached requires knowing what standard of care is expected of the defendant
general standard: conduct by a reasonable man in the given circumstances
Reasonable man is a legal concept. What care do you think can be expected from him?
Free from over-apprehension and over- confidence

11. Standard of care
What difficulties might arise in determining the care of a reasonable man?
What about cases of professional negligence?
professional negligence – professional standard
a body of experts will attest to common, standard and reasonable practices in the relevant profession

12. Breach of the duty of care
if the defendant’s acts or omissions were below the standard – breach of the duty of care is established
negligence is proved

13. Considerations in establishing a breach of the duty of care
defendant’s ability to stand the loss
impact of the decision on the profession concerned
future adjudication (setting precedents)
the ‘floodgates’ argument

14. Breach of duty of care
Do exercise III – true or false?

15. Causation
after negligence is proved, the next thing to determine is actual liability for the damage
the link between the breach of duty of care and the damage - CAUSATION
‘but for’ test:
‘Would the claimant have suffered damage but for the negligent act of the defendant?’
standard of proof: balance of probabilities

16. Causation multiple possible sources of damage possible effects
non-tortious natural risk
claimant’s conduct (contributory negligence)
possible effects
defendant found not liable
reduction of the amount of damages
How do you think the court makes a decision when multiple risks are involved?

17. Causation breaking the chain of causation
intervening act (novus actus interveniens)
by the claimant
by a third party
by a natural event
Think of examples of intervening acts that interrupt the chain of causation!

18. Regulation of negligence
developed in common law and still largely regulated by case law
examples of codified negligence law:
consumer protection: EU regulations impose strict liability on any person in the chain of production and distribution of harmul products (product liability laws)
occupier’s liability: occupant of premises is liable for any damage sustained by visitors to the premises due to poor maintenance

19. Causation Do exercise VI – true or false?
In pairs, take turns to explain the key terms of negligence (ex. IV & VII)
DISCUSSION
read and discuss the case studies (ex. IX & X)

20. Thank you for your attention!