Editing Tort (section)

====Negligence====
{{Main article|Negligence}}
The tort of negligence is a cause of action leading to relief designed to protect legal rights{{efn|Depending on jurisdiction, this includes those of personal safety, property, and intangible economic interests or noneconomic interests such as the tort of [[negligent infliction of emotional distress]]}} from actions which, although unintentional, nevertheless cause some form of legal harm to the plaintiff. In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further, a defendant may assert various defences to a plaintiff's case, including comparative fault and assumption of risk. Negligence is a tort which arises from the breach of the [[duty of care]] owed by one person to another from the perspective of a [[reasonable person]]. Although credited as appearing in the United States in ''[[Brown v. Kendall]]'', the later Scottish case of ''[[Donoghue v Stevenson]]'' [1932] AC 562, followed in England, brought England into line with the United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions.<ref>Ferrari F. (1994). [http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1003&context=annlsurvey Donoghue v. Stevenson's 60th Anniversary]. ''Annual Survey of International & Comparative Law''.</ref> In ''Donoghue'', Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence.

In most common law jurisdictions, there are four elements to a negligence action:<ref>{{cite journal|last1=Boehm|first1=Theodore R.|title=A Tangled Webb - Reexamining the Role of Duty in Indiana Negligence Actions|journal=Indiana Law Review|date=2003|volume=37|issue=1|pages=1–20 |doi=10.18060/3628 |url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/indilr37&div=8&id=&page=|access-date=22 September 2017}}</ref>
#duty: the [[defendant]] has a duty to others, including the [[plaintiff]], to [[duty of care|exercise reasonable care]]{{efn|For example, in the business realm, the auditor has a duty of care to the company they are auditing – that the documents created are a true and reliable representation of the company's financial position. However, as per [[Esanda Finance Corporation Ltd v Peat Marwick Hungerfords|Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords]], such auditors do NOT provide a duty of care to third parties who rely on their reports. An exception is where the auditor provides the third party with a privity letter, explicitly stating the third party can rely on the report for a specific purpose. In such cases, the privity letter establishes a duty of care.<ref>{{Cite web |last=Sadler|first=Pauline|date=2009|title=Liability for Negligent Misrepresentation in the Finance Industry|url=http://www.austlii.edu.au/au/journals/LegIssBus/2009/3.pdf}} (2009) 11 Legal Issues in Business 17.</ref>}}
#breach: the defendant breaches that duty through an act or culpable omission
#damages: as a result of that act or omission, the plaintiff suffers an injury
#causation: the injury to the plaintiff is a reasonably foreseeable{{efn|The case ''[[Chapman v Hearse]]'' added to the precedent of negligence where in previous cases reasonable foreseeability was applied narrowly to include all predictable actions, ''Chapman v Hearse'' extended this to include all damages of the same nature which could be reasonably foreseen.<ref>''Chapman v Hearse'' (1961) 106 CLR 112</ref>}} consequence of the defendant's act or omission under the [[proximate cause]] doctrine.{{efn|Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for.<ref name="March v Stamare">{{cite AustLII|HCA|12|1991|litigants=[[March v Stramare (E & MH) Pty Ltd]] |parallelcite=(1991) 171 [[Commonwealth Law Reports|CLR]] 506 |courtname=auto}}.</ref><ref>[http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts12.htm Ch. 12, Proximate or legal cause] LexisNexis Study Outline.</ref> The defendant may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. For example, someone who has a bad back is injured in the back in a car accident. Years later, he is still in pain. He must prove the pain is caused by the car accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if, after the accident, the doctor who works on you commits malpractice and injures you further, the defendant can argue that it was not the accident, but the incompetent doctor who caused your injury. [https://web.archive.org/web/20120615233606/http://www.jud.ct.gov/ji/Civil/part3/3.1-8.htm]}}

Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm.<ref name="owen">{{cite journal|last1=Owen|first1=David G.|title=The Five Elements of Negligence|journal=Hofstra Law Review|date=Summer 2007|volume=35|issue=4|page=1671|url=http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr|access-date=22 September 2017}}</ref> Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages.<ref name="owen"/> However, at their heart, the various definitions of what constitutes negligent conduct are very similar. Depending on jurisdiction, [[product liability]] cases such as those involving warranties may be considered negligence actions or fall under a separate category of [[strict liability]] torts. Similarly, cases involving environmental or consumer health torts which other countries treat as negligence or strict liability torts are treated in [[Tort law in India|India]] as [[absolute liability]] torts.

In establishing whether a duty of care exists, different common law jurisdictions have developed a variety of distinct but related approaches, with many jurisdictions building on the test established in ''[[Anns v Merton LBC]]''. In Singapore, the current leading case is ''[[Spandeck Engineering v Defence Science and Technology Agency]]'', which builds on ''Anns'' by establishing a two step test comprising an analysis of [[proximate cause]] and [[public policy doctrine|public policy]] as a universal test, independent from the individual circumstances of a given case, for determining the existence of a duty of care. The Supreme Court of Canada established a similar test in the context of assessing damages for [[pure economic loss]] owing to negligence derived from ''Anns'' which consists of a two step examination of the existence of a sufficiently proximate relationship between the parties and public policy considerations; however, the Canadian test is more sensitive to the individual circumstances of a given case and the first step is generally deemed to be met where a case falls into one of three [[Canadian tort law#Negligence|sets of circumstances recognised by precedent]] while the Singaporean test is independent of precedent. In English tort law, ''[[Caparo Industries plc v Dickman]]'' established a tripartite test for the existence of a duty of care per which harm must be reasonably foreseeable as a potential result of the defendant's conduct; the parties must be in a relationship of proximity; and it must be fair, just, and reasonable to impose such a duty.