'The concept of 'duty of care' in Negligence-An independant tort'

NEGLIGENCE - DUTY OF CARE EXISTENCE OF A DUTY Before 1932 there was no generalised duty of care in negligence. The tort did exist and was applied in particular situations where the courts had decided that a duty should be owed, eg, road accidents, bailments or dangerous goods. In Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said: "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 so affected when I am directing my mind to the acts or omissions which are called in question." This test has been criticised as being too wide but it made it easier for lawyers to argue that there should be liability for negligently causing harm in new situations, not previously covered by case law. In 1970, Lord Reid said that Lord Atkin's dictum ought to apply unless there was some justification or

  • Word count: 3557
  • Level: University Degree
  • Subject: Law
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NEGLIGENCE & DUTY OF CARE - The leading case in Negligence is the case of Donoghue v Stevenson (1932)

The leading case in Negligence is the case of Donoghue v Stevenson (1932) This case explains that, Mrs Donoghue and her friend went to a cafe in Paisley. At the cafe, Mrs Donoghues' friend bought her a drink which was a ginger beer float consisting of ginger beer that was in an opaque bottle. After Mrs Donoghue drank out of the drink in a beer cup, her friend topped up the drink, and then they found in the ginger beer bottle a decomposed remains of a snail. Mrs Donoghue claimed that the memories of seeing the snail in the ginger beer she had already drunk made her ill. Mrs Donoghue could not sue the retailer of the ginger beer for breach of contract because she was not the one that bought the beer herself this is because the contract had been made between the retailer and her friend. She therefore sued against the manufacturer in tort as it was not worth suing the retailer who had only sold the drink to them. The neighbour test This was brought about by Lord Atkins in the case of Donoghue v Stevenson (1932). Lord Atkins stated that there must be some general conception of relations giving rise to a duty of care. The rule was that a person must love his neighbour which became in law that you must not injure you neighbour. The question was that "who then in law is my neighbour? The answer was that anyone who is closely and directly affected by your act, to reasonably have

  • Word count: 615
  • Level: AS and A Level
  • Subject: Law
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NEGLIGENCE - BREACH OF DUTY

AMY KEMP NEGLIGENCE - BREACH OF DUTY 04-02-04 Angela had recently been taken on as an adult volunteer helper with an outdoor activity centre. She was making her first trip with a group of 10-12 year old girls. Beth, an experienced leader, asked Angela to supervise the children building a rope bridge across a river. Angela had had no previous training or experience in making rope bridges, but she agreed to supervise on her own. When Angela's group of children started to cross the bridge that they had built, it collapsed, injuring Delia, aged 10. Angela had told the children the bridge was safe to use. (a) Explaining the relevant rules of law, decide whether Beth owed a duty of care to Delia in this situation. Lord Atkin originally determined how a duty of care could be identified in his 'neighbour principle.' In Donoghue V Stevenson [1932] he said, "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." It was later established in Caparo V Dickman [1990], the test for duty of care must be answered in three stages. The first of these is the same as the Neighbour test. When applying this test to Beth, we must consider if the injuries Delia suffered were foreseeable and, as she knew that Angela had no previous experience, it would be fair to assume that she would

  • Word count: 346
  • Level: University Degree
  • Subject: Law
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Duty of Care.

DUTY OF CARE In order to establish negligence, the following had to be proved - . There was a duty owed to the claimant. 2. The duty was breached. 3. The claimant suffered damages as a result. The 'Neighbor' principle enunciated by Lord Atkins in Donoghue v Stevenson (1932) indicated to whom duty is owed and laid the principle for the modern tort of negligence. He said: 'The rule of law that you are to love your neighbor becomes in law, you must not injure your neighbor; and the lawyer's question, who is my neighbor? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be like to injure your neighbor. The answers seems to be - persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question'..........'the proximity be not confined to mere physical proximity but be used as ....to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act...' Grant v Australian Knitting Mills Ltd [1936] UKPC Donoghue was ratified and furthered. It held that - * Essential question was not if the product could be examined

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  • Level: University Degree
  • Subject: Law
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Duty of Care

Define and discuss the term 'Duty of Care'. In your discussion contextualize via examples, the application of such a concept in the field of Public Health, Health and Safety Management and Environmental Health. Within contemporary society, the concept of duty of care can be applied to a variety of industries, examples of these are; a doctor has a legal duty of care to his patient, a teacher to his pupil, as does a manufacturer to a consumer. Duty of care can be defined as a legal obligation, to exercise a level of care towards an individual, as is reasonably practicable in all the circumstances, to avoid injury to that individual or his property. In quintessence, duty of care ensures that quality, safety and high standards are paramount in delivery. With reference to the question, and for the purpose of this assignment, the writer will discuss the impact of 'Duty of Care' within the fields of Health and Safety Management, Public Health and Environmental Health. Fundamentally there are two branches of law, criminal and civil. Civil law usually deals with disputes where one person has suffered loss or harm and brings a legal action against another person, this can be referred to as a tort or a civil wrong. The word tort is derived from the Latin word tortus, which means twisted, however, in the technical legal wording, tort means a legal wrong (negligence) for which the law

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  • Level: University Degree
  • Subject: Law
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Duty of Care Case Study.

2) Duty of care refers to the circumstances and relationships which the law recognises as giving rise to a legal duty to take care. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care. Therefore it is necessary for the claimant to establish that the defendant owed them a duty of care. The existence of a duty of care depends on the type of loss and different legal tests apply to different losses. This lecture considers the position in relation to personal injury and property damage. See the other lectures for psychiatric injury, pure economic loss and defective items. As a road user, Charles has a duty of care to other road users, this includes other vehicles, and pedestrians etc. as can be illustrated in the case Donoghue v Stevenson 1932. For a negligence claim to be upheld there must be a breach in the duty of care, reasonable foreseeability, a degree of proximity between the defendant and the claimant and it must be fair, just and reasonable to impose such liability. This is illustrated in the case of Caparo Industries plc v Dickman 1990. It does not appear to be the case the Charles was driving recklessly or carelessly as he was driving “below the speed limit” when Dan appeared on the road. Charles also braked when he saw Dan but the heavy rain may

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  • Level: University Degree
  • Subject: Law
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Liability In Negligence Problem case. Advise Greenwichshire Police whether they owe a duty of care in negligence to: a) Those injured at the rally b)PC Nick

Liability In Negligence Advise Greenwichshire Police whether they owe a duty of care in negligence to: a) Those injured at the rally Winfield defines negligence as "the breach of the legal duty to take care which results in damage, on desired by the defendant to the plaintiff"1 therefore it is necessary to prove an existing duty of care, breach of that duty and causation of damage in order to find successful action in negligence. Negligence began to develop in the early 19th century when liability of careless acts was founded upon a "duty to take care". On a case by case basis duty was found to exist owing to the relationship between the parties. Attempts such as that in Haven V Pender [1883] to set out a more general concept of duty had failed until Donoghue V Stevenson [19322]. In the case of Donoghue V Stevenson [1932]3, Lord Atkin developed his famous "Neighbour principle". He stated " You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure you neighbour. Who then in law is my neighbour? The answer seems to be - persons closely directly affected by my act"4. In determining whether the Greenwichshire Police owe a duty of care to those injured at the rally, we must first find whether there is an existing duty of care. In order to establish an existing duty, the neighbour principle will be applied. Evidently,

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  • Level: University Degree
  • Subject: Law
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Is there a Duty of Care?

How do the Courts in England and Wales decide when a duty is owed by the defendant to the claimant? How should they decide these issues? To what extents should a decision be purely a matter of principle, as opposed to policy? The aim of the essay is to evaluate the current law on how a duty of care should be decided. The assignment will discuss what constitutes a duty of care within the tort of negligence. First, i will discuss why previous attempts, such as those demonstrated in Anns v Merton1 of establishing a duty failed, following a critical analysis of the current law in Caparo v Dickman2. The essay will subsequently discuss possible modifications in the law using academic writers, such as Christian Witting3. This will be followed reasons as to why the law should focus largely on policy rather than principle when establishing a duty of care, using iconic cases such as Weller & Co v Foot and Mouth Disease Research Institute4. A tort is a civil wrong which is committed against an individual rather than the state. The individual's interests can be protected through compensation for the infringement of a certain protected interest. Although there are many torts in which a duty of care is an element required in order to make a successful claim, such as Occupier's Liability5, for the purposes of the essay, the duty of care in the categories of negligence will be of primary

  • Word count: 3327
  • Level: University Degree
  • Subject: Law
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House of Lords, Duty of care,

House of Lords Duty of care, On 1st April 2000, Drake a yachtsman was sailing off the coast of Devon, when he got into severe difficulties due to severe weather. Drake sent a radio message to the Devon Coastguard service. The Secretary of State for Transport bears legal responsibility for this service. The coastguard service mounted a search and rescue operation. The coastguard acted negligently in their handling of this operation in that they: i) Failed to respond promptly to Drake's call for help; ii) Misdirected a lifeboat to search inshore rather than offshore; iii) Misdirected a Royal Navy helicopter and failed to mobilise another until four hours later. Drake was eventually rescued but his rescue was delayed for so long that he had to abandon his boat when it sank as it had taken in a large quantity of water. As a result of the time he spent in very cold water he suffered severe hypothermia, frostbite and shock. He later had to have his right leg amputated due to the effects of the frostbite. High Court HELD: i) Applying precedents relating to other emergency services, in particular the fire service, the coastguard services were under no enforceable private law duty of care to respond to an emergency call. If they did respond to an emergency call, they were not under any duty of care if their response was negligent, save where their negligence

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  • Level: University Degree
  • Subject: Law
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How is negligence applied to health care law?

HOW IS NEGLIGENCE APPLIED TO HEALTH CARE LAW? Negligence is the most important field of medical law as it governs most activities of modern society but it was first established in tort law and the principles that govern it were later related to medical law. In a nutshell, to establish negligence, you have to show the "ABCs" of negligence: (a) a duty of care must exist between the person injured and the person responsible for that injury; (b) conduct of the defendant fell short of that duty of care; and (c) resultant damages. The law of negligence is one aspect, indeed a very major aspect, of the law of tort. One way in which a person can become legally liable to another by breaking a contract. A contract is an agreement which the law is prepared to enforce, and this "enforcement" amounts at least to the consolation of getting damages-money-if the agreement is broken. The law of tort is concerned also with the award of damages; but here there has been no agreement between the people who find themselves legally entangled. Indeed, in the majority of tort cases there has been no relationship at all between the parties before the "wrong" is done. Instead the law creates a legal relationship between the person who does something wrong and the other person who suffers from it. (Finch.J, 1981) "The rule that you are to love your neighbour becomes in law, you must not injure your

  • Word count: 2893
  • Level: University Degree
  • Subject: Law
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