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University Degree: Tort Law
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Describe the elements of the Tort of Negligence and critically analyse their practical applications.
The elements that make the tort of negligent valid or actionable are that 1. it should be proved that the tortfeasor owed the claimant a duty of care, 2. that by negligent conduct the defendant broke this duty of care, 3. this negligent conduct caused a consequential legally actionable damage to the claimant, and that 4. there is a proximate connection between the negligent conduct and the resulting injury (Common law, 147). Duty of care is defined as the duty of people to exercise "reasonable care" when dealing with others. Reasonable care is defined as the degree of care that a reasonable person should, not necessarily would, act with, and this is determined by tort law.
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Torts: How Satisfactorily have the courts used the control devices of duty of care, breach of duty, and causation of damage to limit liability in the tort of negligence. Discuss with reference to the following types of claim: personal injury, property dam
However, the three limbs of this test are 'merely facets of the same thing3. So in reality, only one of the three limbs needs to be satisfied and the other two limbs can be interpreted broadly so as to fit the circumstances. This may open up the floodgates. Indeed, in the personal injury case of Cunningham v Reading Football Club4, crowd violence was not only foreseeable, it was likely, and since the defendant was in control of the stadium and the safety of it, it could be inferred that there was a special relationship of proximity.
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One can note with buying �200 heels the purpose would be to wear them, therefore this implication can be taken by 'Clarkstone shoe shop' and the heels failed to fit for the purpose in which they were purchased for. This subsequently can allow Jenn to claim under section 14 (3). An example of a case which illustrates this section is the Grant v Australian Knitting Mills case2; in this case it was held that the goods bought by the consumer were not of 'merchantable quality or reasonably fit for the purpose'.
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Now a third party can enforce a contractual term where the contract either expressly states that term should give rights to a third party, or where a particular term purports to confer a benefit on a third party. The other side of the privity rule is that only the person or company who actually sold the product can be sued, and this part of the rule remains. If the seller cannot be traced, is bankrupt or otherwise unable to pay damages, the consumer has no claim in contract against anyone else involved in the product's supply.
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Nevertheless this argument seems very weak due to the barrier between Edward and Tobias, more likely that the "threat" isn't immediate. Edward can except and reconcile the situation. When Tobias slapped Will on the back while he was running down the stairs, it was unlikely that Will was aware of this. Therefore the possibility of this constituting to an assult is slim, the element of apprehsion has not been satisfied. It is only an assult if Will was aware of Tobias approaching him.
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The classic definition of duty of care is from the leading case of Donoghue v. Stevenson5 where Lord Atkin formulated the basis of liability.6 The formulation by Lord Atkin is known as the Neighbour principle and this is a broad principle of liability which identifies the person to whom a duty of care may be owed. Lord Wilberforce redefined the neighbour principle in Anns v Merton London BC7 were he turned it into a two-stage test. The first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness
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Not all injury-causing acts are negligent per se, particularly in contact sports. The key question was: (whether) is a breach of the constitutive rules of a sport (was) determinative of liability or is (was) some other standard to be applied? Much needed clarification on the post-Condon position was offered in Caldwell v Maguire and Fitzgerald13. The duty of care was defined as being a duty to exercise 'all care that is objectively reasonable in the prevailing circumstances for the avoidance of infliction of injury'14 to other participants.
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It was in Bourhill v Young4 that Psychiatric illness liability came before the House of Lords for the first time, and the claimants tried to establish that the duty of care should be extended to the claimant being outside the area of impact but within the area of shock, however this was not successful. On the facts, their Lordships thought that ordinary people could be expected to withstand the rigours of witnessing injury to a stranger on the roads without suffering psychiatric illness and referred back to the Kennedy test of being outside the area of foreseeable physical impact.
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The ability to bring tortious claims, after the contractual limitation period has expired can be particularly useful in relation to latent defects (fault in the property that could not have been discovered by a reasonably thorough inspection before the sale). By their very nature these defects often result in damage, some considerable time after the contract has been completed. The distinction (tort & contract) in practice is less clear, as many fact situations call rise to an action in both tort and contract (if there is contract in existence).
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Liability for a wrong that is imposed without the necessity of proving intention or negligence on the part of the Defendant.
On this basis the torts are actionable per se. This means that proof of fault is not required by the claimant; this outlines that liability in trespass are strict. Negligence as a tort is defined as the breach of a duty of care, owed by the defendant to the plaintiff, which caused damage to the plaintiff. For Negligence to be relied on, there are three elements that must be established. The defendant must have owed a duty of care to the plaintiff, that duty must have been breached and that the claimant suffered damage by the breach of duty, which must not be too remote.
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The claimant may in some situations elect to claim instead the reliance measure of damages (i.e. to return him to the position he was in before the contract), for example when it is impossible to prove his expectancy, but he will not be able to use this to escape a bargain which the defendant can show would have been a bad one even if the contract had been performed.1 Contract and Tort are the 2 main areas of the English law of obligations.
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Consider what is meant by concurrent liability in tort and contract. Using examples from decided cases examine how such liabilities can arise, and how the courts have dealt with the issue of the interrelationship between obligati
Public health-fire brigade-payment for service-request transmitted through police-liability of owner of premises. The court held that there was a contractual relationship between the appellant and the fire brigade, therefore, liable under an implied contract to pay for the brigade's services. The law of tort protects person's interests. These interests can be protected by a court by awarding a sum of money, compensating the individual for civil wrong that occurred. 'The paradigm tort consists of an act or omission by the defendant which causes damage to the claimant.
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which cause a form of loss to the plaintiff, the person (defendant) will be held at fault in the court and the remedy will be damages. There are four important elements of negligence a plaintiff has to prove to succeed in an action of negligence: 1. The Plaintiff must prove the defendant owe him a duty of care 2. The Plaintiff must prove that there was a breach of duty of care by the defendant 3. The Plaintiff must Prove that he suffer injury, damage and loss 4. The Plaintiff must prove that the damage and loss suffered is as a result of the alleged breach of the duty of care by the defendant.
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that the party complained of should owe to the party complaining a duty to take care and that party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty".5 Flowing from these, several classes of circumstances have emerged in which the courts have held that a duty of care exist to a plaintiff from the defendant. These include cases of: (a) Road accidents, where it has been held that a driver owes a duty of care to properly control and operate his vehicle as not to injure or hit another lawful road user.6 (b)
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'In recent times, the House of Lords has given up any attempt to examine causation questions in a systematic manner. If their Lordships feel the claimant deserve compensation they will bend the rules to achieve that result.'
(Causation in Law or remoteness of damage) However, the courts have found that is not always easy to analyse situations using this standard test for causation. Lord Hoffman describes the 'but for' test as being the standard criteria and the 'most commonly prescribed'5. But there is still room to deviate from this criteria when the situation demands it, and the House of Lords has been doing so for a very long time, not just in recent times. The difficulties of applying the 'but for' test have been seen in numerous situations such as * When there is an omission rather than an act by the defendant , the court must then determine what would happen had the defendant chosen to act.
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The leading case in the area which discusses and evaluates the tort of privacy in Australia is Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. The case forms a crucible for the discussion of privacy in Australia and the way the courts have attempted to provide remedies under other categories of law but also shows the way in which the courts have deliberately avoided making a definitive and clear statement on the subject. Lenah2 concerned hidden video cameras installed in licensed possum killing and processing abattoirs by trespassers which was then supplied Animal Liberation who then passed it on the ABC.
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Tortious liability arises from the breach of duty primarily fixed by law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
successfully claim in negligence, he has to prove that a Duty of Care existed between Sun Loungers Syndicate and himself which was breached resulting in damages payable to Crispin. To determine the existence of duty of care towards Crispin the three part test of foreseeability, proximity and the need to be fair and just is to be used. Crispin had been bullied by work colleagues, the bullying and harassment involved both physical and verbal abuse, and results not just from Crispin's sexual orientation but also from the fact tat he was brighter and more capable than any of his colleagues, including the managing director, who encouraged the bullying and who had the authority and responsibility to stop this harassment.
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It is clear that psychiatric injury presents the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines. Discuss the above statement.
Such claims do not create 'profound problems' as it is a clear case of the primary victim being subject to danger. The Lords held in Page v Smith3 that where there is a danger of physical injury and it is foreseeable, the law should make no distinction between physical and psychiatric illness. The so-called 'profound problems', arise from claims made by secondary victims. These are claimants who suffer psychiatric illness by 'witnessing the death, injury or imperilment of another person'4.
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Discuss the suggestion that fault IS a central element of liability in English law, but that it should NOT be.
Causation may also break the chain of liability, and lessen or negate a parties fault. This is seen in the "but for" test for causation in tort. The best example being in Barnett v Chelsea and Kensington HMC where a man went to A&E complaining of vomiting but was sent home, he later died and there is no doubt he was owed a duty of care by the hospital and there was a breach of that duty. However the man had died from arsenic poisoning, and any actions that could have been taken by the hospital would not have changed the outcome, to in effect their fault was negated.
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In criminal law the requirement that mens rea (unlawful state of mind at the time of the offence) be established amounts to saying that criminal liability is imposed on blameworthy activity. This close connection between fault and mens rea results in punishment being based on the degree of moral blameworthiness that the defendant is believed to have possessed. The fact that this degree of blameworthiness not only determines whether the defendant will simply be found liable or not, but is concerned with the punishment, deterrence and rehabilitation of individuals whose conduct is considered by the law to be not only wrongs against other individuals, but also against society as a whole, would suggest fault is clearly an essential element.
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Therefore a breach of duty has also occurred and duty of care between the doctor and patient has been violated (Brooten 1987, p. 1). For example when Dr. Evil failed to read any of the instructions about the medication that he prescribed to the patient he violated the duty of care between himself and the patient. This shows extreme negligence on his part and the tort law that covers this area would define this as being valid and providing burden of proof.
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Carnwath J found that there was no trust, so there could be no breach, and that Leach had not acted dishonestly. The Court of Appeal came to a different conclusion. Their Lordships held that the undertaking did create a trust, and that Leach had been dishonest. The House of Lords held unanimously that the undertaking created a Quistclose trust, but a majority of 4-1 found that Mr Leach was not dishonest. There was much controversy over the meaning of 'dishonest' in the context of a claim for dishonest assistance in a breach of trust.
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and C will suffer if it is done poorly. This would only apply in a business context, such as in the case between Henry and Gordon; they had a 'special relationship'. Lord Reid stated that a 'special relationship' arose when 'it is plain that the party seeking information or advice was trusting the other to exercise such a degree of care as the circumstances required, where it was reasonable for him to do that, and where the other gave the information or advice when he knew or ought to have known that the enquirer was relying on him'.
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In making their report, we must consider whether or not the defendants in this case ought reasonably to have foreseen the harm caused to the claimant and whether there is sufficient proximity for the claimant to be able to be called a 'neighbour'. Home Office v Dorset Yacht Co5 uses the 'neigbour principle' in Donaghue v Stevenson6 in order to establish a clear test for duty of care. The test asks two questions; was it foreseeable that the damage would occur unless care was taken to prevent it?
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A standard of reasonable care is expected: what a reasonable person would have done to prevent harm. In order to establish this, the Salmond test is applied with the following criteria: likelihood; seriousness or magnitude of the risk; social utility and costs. (Owens, 2001) In order to succeed with the claim, the claimant has to prove that the breach of duty caused the damage and that it was not too remote. "A consequence would only be too remote if it was due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results".
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