Element (2) Breach of the Duty of Care
The essence of the tort is that there is a duty of care and that the defendant
breaches that duty. This breach can be an “act” where the defendant does
something they should not do or it can be an “omission” where the
defendant fails to do something that they should do.
39
Element (3) Injury
The defendant is injured by the plaintiff’s breach of the duty of care. As
Lord Atkin put it succinctly: “[Y]ou must not injure your neighbour”.
40
In
amplified from, Lord Atkin stressed the need for injury in the following
way: “You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour”.
41
This
means that however careless someone has been, if they cause you no injury
you have no action against them for negligence.
Element (4) Defences
There must be no defences available to the defendant
Figure 2.2 Elements of Negligence
Common Law as Transnational Law
While common law originated in England, it is now trans-national.
42
Because
of the colonising actions of Great Britain, common law spread to many other
countries. In this it was driven by a rule of British constitutional law -
on
settlement a colony receives as much of British common law as can apply to
the colony. This is the basis on which common law was received into many
British colonies. In other cases it was transplanted by statute.
43
Since its
reception, courts in these countries (now freed from their colonial status) have
taken up, endorsed, extended and changed this common law. In the early days
courts of these countries drew extensively on the decisions of English courts
for guidance and inspiration. They still do this to an extent but they now will
make up their own mind, while still consulting for guidance decisions of other
39
Donoghue v Stevenson [1932] AC 562 at 580 per Lord Atkin
40
Donoghue v Stevenson [1932] AC 562 at 580 per Lord Atkin
41
Donoghue v Stevenson [1932] AC 562 at 580 per Lord Atkin
42
Despite this, it is not necessarily totally uniform – see Tunc (1984).
43
As an illustration, doubts about the application of the common law (and
statute law) of England to the eastern half of Australia were resolved by putting
the reception of English law on a statutory footing. This was done by s24 of the
Australian Courts Act 1828 (Imp) (9 Geo IV c83).
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