Economic loss and the law of negligence in delict.
INTRODUCTION The element of economic loss provides many difficulties to the law of negligence in delict. There are three main classifications of economic loss; derivative, secondary and pure economic however for the purpose of this essay I shall be examining mainly the concept of pure consequential economic loss. This type of loss in general is not recoverable in negligence and there is no duty to avoid causing financial loss as in the words of Lord Bridge in Murphy v. Brentwood District Council 1991: "By reason of some special relationship of proximity which imposes on the tortfeaser a duty of care to protect against economic loss." What this is saying is that a duty of care can arise irrespective of pure economic loss. The pursuer must satisfy what we call the enhanced requirements of proximity, and this was highlighted in Capro Industries plc v Dickman, and it must be fair and reasonable to impose such a duty. Thus the point I will be highlighting is that negligent solicitors may owe a duty of care and thus incur liability in delict to disappointed beneficiaries where wills have been administered negligently. The case, which has given great significance to this area of law, was White v Jones. LEGAL BACKGROUND In general it appears to be that in Scots law, a solicitor acting for a client may be concurrently liable both in contract and in delict, and the solicitor
Negligence in law.
Umair R. Vadria "The categories of Negligence are never closed." Lord Macmillan [Donoghue v. Stevenson] Negligence as defined by Winfield is the breach of a legal duty to take care that results in damage, undesired by the defendant, to the plaintiff. Before Donoghue v. Stevenson, the Tort of Negligence even though existing, was not ever in recognition as a complete tort in itself. Earlier decisions of the courts in cases very similar to Donoghue v. Stevenson show that the courts were very reluctant to impose liability. These cases were: Muller v. Bar of Co (1929) M'Govan v. Bar of Co (1929) Both these cases related to a mouse being found in a bottle of ginger beer. The courts could not find fault to associate the accident with the manufacturers. It was said that even if fault were proved, would the English law allow such a claim. Lord Macmillan held in D&S that a manufacturer does know that the consumer will consume his goods. In such cases where there are no alterations to the product from the manufacturer to the consumer, the manufacturer does come under a duty of care towards the final consumers. D&S established negligence as a separate tort, and opened a gateway to future claims. Judges began to look for duty of care in cases depending upon their facts, and where this could be established compensation could be sought, provided of course that breach of that
Tort Law - Negligence
"Negligence as a tort is a breach of a legal duty to take care which results in damage to the claimant." (Rogers, 2002) As Owens (2001) explains, in order to succeed with a claim for negligence, the claimant has to prove a number of factors which are individually specified in each of the following cases. To establish if the defendant is negligent, the claimant has to prove the following questions: Is there a duty of care? Was there a breach of the duty? Was the damage caused by the breach? The principle behind the duty of care was established in Donoghue v Stevenson (1932) called the neighbour principle. A neighbour is defined by Keenan (2001) "persons who are so closely and directly affected by my act ...". Caparro Industries plc v Dickman (1990) set-up three questions which have to be answered in order to establish whether the defendant owes a duty of care to the claimant: Was the claimant reasonably foreseeable? Was there a relationship of sufficient proximity between the parties? Is it just and reasonable to impose a duty of care? (Keenan, 2001) If a duty of care is owed it has to be proven that the defendant has fallen bellow the standard of care required and there was a breach of the duty. 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
"Negligence" - Business & Cmpany Law
Question: "Negligence is an ever expanding area of law". Discuss making reference to case law. Negligence is a tort and an element of tort; it is the most important ever expanding area of law. Negligence can be described as a tort involving the branch of legal duty of care causing loss by a failure to the party to whom the duty is owed. So what is a tort? A tort is simply a civil wrong, "the law of tort is concerned with a description of those instances of conduct which the court primarily have rules should be prohibited and penalised" (IPA text, 2002). Tort is based on faults, most torts are committed by carelessness (negligence) rather than intentionally there can however be liability for an omission. The is no definite definition for the law of negligence this is part of the reason for its ever increasing nature, For example if a person unintentionally but negligibly commit a wrongful act to another(plaintiff) 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: . 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,
The tort of negligence.
Tort coursework In the tort of negligence three things need to be proved in order for an action to succeed, the first being that the defendant owed a duty of care to the plaintiff, the second being that the defendant breaks that duty of care within the standard of care required by law and thirdly this breach of duty of care results in damage to the plaintiff. This damage must be recognised by the law.1 In the case of Donoghue v Stevenson2 it was said that " 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 my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question."3 Rogers believes that this "statement must be the most influential in any decision on any subject in the history of the common law in England."4 Rogers believe is generally very true as the main concept of negligence comes from that case and that statement. Following this case came the case of Dorset Yacht Co. Ltd. V Home Office [1969]5 where Lord Denning stated "at bottom a matter of public policy which we, as judges, must resolve. This talk of 'duty' or 'no duty' is simply a way of limiting the range of
negligence in tort
LW1008 OBLIGATIONS 1 Negligence in tort has various meanings. It may refer to the tort of negligence or it may refer to careless behaviour. A person who totally disregards the safety of others but does not injure them is not guilty of negligence, although they may be morally reprehensible. On the other hand, the person who tries their best but fall below the standard set by the court and causes any damage will be liable.1 Negligence is judged by an objective standard set, where the court will look at what a 'responsible man or woman' would have done in the defendant's position. An example of this is in the case of Nettleship v Weston (1971)2 , the defendant was a learner driver who was given lessons by the plaintiff. The plaintiff was injured as a result of the defendant's negligent driving. It was held that all drivers, including learning drivers, would be judged by the standards of the average competent driver. Duty, breach, causation and damage are the elements that together make up any successful negligence claim. If the claimant wants to win in a negligence action, some certain points must be proven such as that the defendant owed them a duty of care; that the defendant was in breach of that duty; and that the claimant suffered damage caused by the breach of duty, which was not too remote. In negligence, it has to be proven by the claimant that there has been some
Any breach of statutory duty should give rise to a cause of action in tort for any person who suffers injury, damage or loss as a consequence
"Any breach of statutory duty should give rise to a cause of action in tort for any person who suffers injury, damage or loss as a consequence." In this essay I will analyse and explain how statutory duties are breached, and clarify what happens as a result. In doing so I will also illustrate the cause of action for any person who suffers loss, damage or injury as a consequence. What is a breach of statutory duty? Before a defendant can be brought before a court on charges of breaching a statutory duty. The following element must be proven, or have evidence that the defendant has failed to comply with a statutory obligation, that they were legally obliged to fulfil or carry out. A breach of statutory duty is an independent tort, which is totally separate from the tort of negligence. There are three different types of category applicable to breach statutory duty. These are: . Injury as a result of breaching a statutory duty. 2. Damage as a result of breaching a statutory duty. 3. Loss as a consequence of breaching a statutory duty. Exceptions to breach of statutory duty There are three exceptions to the rule applicable in the breach of a statutory duty. These are: . Protected class (Which includes minors) 2. Public rights (Which is the need for "Particular damage") 3. Special damage (Are given for damages that have been specifically proved) Remedies Due to
Negligence as a tort.
Negligence as a tort may be defined as the breach of a duty of care owed by the defendant to the plaintiff by not complying with the standard of care of the reasonable person which results in the plaintiff suffering damage. The damage may be personal injury, damage to property or just pure economic loss. It may in addiction, consist of psychiatric damage also known as "nervous shock". Before 1932, the Courts followed precedent in earlier cases that if a duty of care was held to exist in a similar earlier case then the judge held there was a duty of care but if a duty was held not to exist in an earlier case then the judge held there was no duty. There were very few factual situations where a duty was held to exist. In Donoghue v Stevenson(1932) Lord Atkin, in attempting to trace a common thread through existing authority, formulated a general principle - the "neighbour principle" - for determining whether, in any given case, a duty of care should exist. He said: "You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour.... 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." The significance of this principle was that it firmly
Contract and Negligence Case law assignment.
Sana ArfanAspects of Contract & NegligenceID: 1199296 Unit 5 – Aspects of Contract and Negligence for Business Assignment 3 Sana Arfan ID: 1199296 Tortious Liability vs. Contractual Liability In a tortious claim the defendant may not have any previous transaction or relationship with the claimant however in contrast to that for contractual liability the defendant and claimant must have a purpose to create legal relations. Elaborating on this further there is supplementary sovereignty in contractual law where as in tortuous liability it is more of an imposed nature. The claimant will receive compensation for damages and expected earnings in the case of contractual liability and in comparison to this the claimant is only entitled to damages in the case of tortuous liability. Another difference is that there is more privacy in the contract in the case of contractual liabilities as the parties who are involved in the contract are the ones who can actually sue for damages as in the case of Atkin v Sounders (1942) whereas in tortuous liabilities any one as a third party who had suffered losses or damages can claim compensation from the defendant whether they are in a legally binding agreement or not. Vicarious Liability Vicarious liability can be defined to be a ‘situation where someone is held responsible for the actions or omissions of another person’ Acas (2009).
negligence caustion assult battery
Tobias' threatening attitude towards Edward requires a consideration of what constitutes an assault. An assault is defined as an act which intentionally causes another person to apprehend the infliction of immediate, unlawful force on his person.1 When Tobias phoned Edward, and utter the words "I am going to kill you and ensure that you never play ruby again". These words alone may be no more than mere abuse, and the content of his words are insuffient to amount to a threat. If words are to account to assault, the Burden of proof is on Edward to show that he reasonable appended harm. If the words themselves do amount to a threat, there are no legal authority that words alone could constitute an assault.2 However this may now be challenged in the House of Lords case in R v Ireland.3 It was accepted that a silent phone call could amount to an assault. Accordingly, it is now clear that the use of words alone may be an assault taking into account all the surrounding circumstances. If Tobias words are capable of amounting to an assault, there remain the issue that there cannot be an assault unless the threat is immediate. The fact that Tobias utter these words to Edward over the phone rather than in person or face to face, a reasonable person would hold that, Tobias is not in a position to inflict immediate and direct harm on Edward. Thus, Edward wasn't under immediate threat
