Other Aspects of Negligence Claims

Abstract

In order to succeed in a negligence action, claimants must establish that: (i) they were owed a duty of care, (ii) the duty was breached by the defendant, and (iii) the duty caused loss of a legally recognized kind. It will also be necessary for the claim to be ‘justiciable’, that is, of a kind which is suitable for resolution in the courts. We consider justiciability in Chapter 2 and the approach taken by the courts to determine a duty of care in Chapters 3 and 4. In this chapter we examine the other elements of a negligence claim: namely, breach of duty, causation, and damage. We shall also consider two further questions: whether claims can be brought, not only against a careless individual, but against his or her employer, and the procedures for disposing of claims without requiring a trial through strike-out and summary judgment procedures.