Tort law concerns itself with civil wrongdoing, and negligence is a distinct category of tort law. Negligence consists of the following constituent elements: a duty of care is found by the court to be owing by one party to another; that duty of care is breached by acts or omissions of the defending party; the aggrieved party suffers harm; the breach is the proximate cause of the harm suffered by the aggrieved party; the defending party cannot avail itself of any defences that would release it in whole or in part from liability; and the harm suffered by the aggrieved party can be compensated by an award of damages.
The modern law of negligence can be traced to a 1932 House of Lords decision, Donoghue v. Stevenson. Lord Aitkin’s definition of the duty of care in Donoghue v. Stevenson is considered one of the landmark pronouncements in modern jurisprudence: “There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances … The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question”.
Consideration of public policy may dictate that courts will not recognize causes of action in tort. There is a need for judicial restraint in the development of tort law as it pertains to sensitive and far-reaching issues of public policy.