Law of Commerce
explain with the reference to decided cases, what a person must do to establish negligence. expand on
the test which may be applied and discuss what remedies and defences are available. how does
negligence relate to professional liability?
Negligence is a tort that refers to body or a number of rights and obligations that are remedied by
courts through civil proceedings that grants the victims some compensation for any harm
suffered as a result of wrongly acts committed against them. There are several elements that must
be present for an action of tort to be successful in a court of law.
The Duty of Care
For an action of the tort of negligence to be successful, the duty of care must exist. For example
in the case of Haynes v Harwood where the plaintiff, who was a police officer risked his life and
sustained injuries when he ran after some horses in a bid to bring them under control after they
were left unattended. The owners of the horses owed a duty of to other road users who may have
been harmed by the horses if they were left unattended. The concern is mostly what an average
ordinary person would do in case of such situation.
Breach of the duty of Care
The duty of care owed to the third parties must have been breached for an action of negligence to
succeed in a court of law as in the case of Brandon v Osborne Garrett & Company.
The breach that occurred must have caused some injury or damage to the victim.
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Damage or Injury
Damage or injury must have occurred and it’s not restricted to physical body harm only it also
refers to monetary loss, emotional stress or even some embarrassment caused.
These are the duty of care must exist to the plaintiff, the duty of care must have been breached,
there must be causation and damage or injury.
The remedies available to the tort of negligence include damages and injunction. Damages can
be classified under nominal damages where a tort has been committed but there no losses or
harm caused to the victim. The others are general, special damages or aggravated damages.
The defences available to an action of tort are vicarious liability, contributory negligence or
volenti Non fit injuria. In the case of Haynes v Harwood, the defendants pleaded that the actions
of the police officer amounted to voluntary assumption of risks hence the defendants were not
liable. But the court established that the defendants were actually liable and the victim was acted
in the best interest of the public in a manner in which any reasonable man would have acted the
same way. The test for the tort of negligence is that for a duty of care to exist, then the concern is
what a prudent person or an ordinary person would do when faced with a similar situation.
Professionals owe a duty of care to their clients as per the standards of an average professional in
the ordinary cause of duty.
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Haynes v Harwood (1935) 1 KB 146, CA
Brandon v Osborne Garrett & Company (1924) 1 KB 548