(Notes) Tort of Negligence (Jasper Wong%27s conflicted copy 2012-06-05)

(Notes) Tort of Negligence (Jasper Wong%27s conflicted copy 2012-06-05)

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LAW OF TORT (pg 495) Tort of Negligence (Pg 497) In order to prove under the tort of negligence, 3 elements must be proven : 1. The defendant owed the plaintiff a duty of care 2. The defendant’s breach of that duty of care 3. The defendant’s breach caused the plaintiff’s loss (that loss is not too remote ) Duty of Care (Pg 498) Duty imposed upon a person to take reasonable care for his acts and omissions. Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency (2007) – A single test is preferable in order to determine the imposition of duty of care in all claims arising out of negligence, irrespective of the type of the damages claimed, and this should include claims for pure economic loss, whether they arise from negligent misstatements or acts/omissions. The single test comprises a preliminary requirement of Factual Foreseeability followed by a 2 stage analysis of Proximity and Policy . Factual Foreseeability Factual foreseeability is established if it can be shown that the defendant ought to have known that the claimant would suffer damage from his (the defendant’s) carelessness. Phang J in Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric (2007) – Factual foreseeability will almost always be satisfied , simply because of its very nature and the very wide nature of the ‘net’ it necessarily casts. Man Mohan Singh s/o Jothirambal Singh and Another v Zurich Insturance (Singapore) Pte Ltd and Another and Another Appeal (2007) – The SCA found that it was not reasonably foreseeable for the negligent driver to have known that the victims killed would comprise all the children of the appellants and that this would cause the appellants to undertake fertility treatment in their desire to conceive additional children. Proximity Legal proximity focuses on the closeness and directness of the relationship between the parties. The court quoted with approval the comments of Deane J in the Australian case Sutherland Shire Council v Heyman (1985) that proximity between two parties is described as encompassing: 1. Physical proximity – closeness in space and time 2. Circumstantial proximity – relationship between parties (e.g. employer/employee) 3. Causal proximity – the closeness or directness of the causal connection or relationship between the particular act and the loss or injury sustained. Once proximity is established, a prima facie duty of care exists. Policy Are there any relevant policy considerations that negate the prima facie duty of care? 1. Is there a contractual relationship which seeks to regulate the rights and obligations of the parties? 2. What are the relative bargaining positions of the parties? 3. “Floodgates” argument Ultramares Corp v Touche Niven & Co (1931) – If the interests of plaintiffs are favoured too much, it may open the floodgates to “liability in an indeterminate amount for an indeterminate time …to an indeterminate class [of people]” If in a contract, plaintiff can claim in negligence under both contract and tort. If one claim fails, he’ll rely on the other. If
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