'The existence of a duty of care is ultimately a question of policy'. Discuss.
'The existence of a duty of care is ultimately a question of policy'. Discuss. In previous years, the concept of duty of care has been applied by various courts to act as a control device in order to determine and limit the categories of who can bring claims in negligence and in what circumstances. Worryingly, judges have shown the ability to strike out cases by deciding that a case is non-actionable and this ability has mostly been exercised in cases concerning public policy. It is here where it is seen that a duty of care will only exist if it does not run contrary to the ideas of public policy. Policy has played an important part in limiting the scope of the duty of care. So is the existence of a duty of care, ultimately a question of policy? To a certain extent, it can be seen that the existence of a duty of care, is ultimately a question of policy. Until very recently courts have has discretion as to whether or not to attach a duty of care to a particular public body and it is these decisions which have been influenced by policy arguments and decisions. This approach has been adopted particularly where there is an overriding public or general interest which awards defendants a certain degree of immunity from litigation. Courts have often justified their actions of not imposing a duty of care upon public bodies using arguments that reflect their concerns should a
Discuss how this comment by Lord Slynn illustrates the development of the general concept of the duty of care and how the existence of the duty of care is to be decided in each case.
'It has been said many times that the [duty of care in the] law of negligence develops incrementally so that the fact that there is no reported case succeeding against the police similar to the present one is not necessarily a sufficient reason for striking out.' Lord Slynn of Hadley, Waters v Commissioner of Police [2000] 1 WLR 1607 at 1613. Discuss how this comment by Lord Slynn illustrates the development of the general concept of the duty of care and how the existence of the duty of care is to be decided in each case. Negligent conduct had previously only been recognised through carefully defined circumstances. Damages tended to be only awarded in cases where 'special circumstances gave rise to a duty of care.' Some of these could be doctor-patient relationships, occupier-visitor relationships or where 'fire damage resulted from negligence.' If a case fell outside a recognised relationship there was no test for determining whether liability existed or not. This classification was used up until the case of Donoghue v Stevenson (1932) AC 562, this was a vital case for English law and the concept of duty of care because it developed a general principle for a duty of care. In Lord Aitkin's principle speech he devised the principle known as the 'neighbour principle.' "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
In order to determine whether the claimant Kevin has any possible tort of negligence claim against the defendants; Miss Harriet, James and Lily, we must first establish whether there was a duty of care owed
Introduction The concept of tort of negligence is difficult to establish, as it may require the claimant to proof damages, intentional behavior or at least recklessness. In order to determine whether the claimant Kevin has any possible tort of negligence claim against the defendants; Miss Harriet, James and Lily, we must first establish whether there was a duty of care owed, breached of duty and whether there was actionable cause of damage. Each defendant plays a different role, thus the decision of whether or not there is a breach of duty owed to Kevin can be decided through: the objective standard of reasonableness, the standard of reasonable child and with the application of the “Bolam test,” as set out in the case of Bolam v Friern Hospital Management Committee.[1] Kevin and Miss Harriet In order for a claim to be brought against Miss Harriet, we must first establish whether there was actionable damage and if a duty of care is owed. According to Lord Bridge; second criteria of the Caparo test[2], we must recognize if there is a proximate relationship between the parties and determine if it is fair, just and reasonable for a duty of care to be imposed. In this situation because Miss Harriet is Kevin’s teacher, thus responsible for ensuring the safety of her students, there is a strong proximity between the two parties and therefore duty of care is affective.
Negligence, causation and remoteness case. To advise the claimants, Abdul, Brian and Christie, it is necessary to establish whether a duty of care was owed to them and that physical or psychological harm resulted from an act of negligence. From the facts
Skyride Ltd operated a theme park in Nottingly. The most popular ride was the roller coaster. The carriages on the roller coaster were attached to the rails by coupling devices that needed to be regularly checked. During the busy summer season, one of the carriages, with someone in it, came off the rails and plunged 100 metres to the ground. Subsequent investigations showed that Skyride Ltd had negligently failed to check the coupling devices regularly, and that this was the cause of the accident. Advise the following as to their remedies, if any, in tort:- i) Abdul was in the carriage immediately behind the one that plunged to the ground. He was terrified that his carriage would also come off the rails, and has now suffered a recurrence of a mental illness that he had been treated for in the past. ii) Brian's teenage son, Dave, was in the carriage that plunged to the ground. Brian was telephoned at home and told which hospital his son had been taken to. When he arrived at the hospital he was told that his son was in intensive care. Six hours later his son suffered a massive brain haemorrhage that required an emergency operation. The following day, Brian, who had spent the night at his son's bedside, was advised that the operation had been unsuccessful and that his son was brain dead. He agreed to have the life support machine turned off. Brian is now suffering from
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
Corporate Governance - Shareholder's duty of care.
Paper, Corporate Governance UvA 2003 (Prof. dr Arnoud Boot & Prof. mr Jaap Glasz). Shareholder's Duty of Care Martijn Brinkhuis Lodewijk Derkman Tobias van der Hoeven Sjoerd Arlman Preface It was concluded in the NBER's 1998 working paper "Corporate Ownership Around the World" that large corporations are widely held only in economies with good shareholder protection. In the U.S., among the largest firms there is only modest concentration of ownership, while amongst the largest firms in Germany, Italy and Japan a more significant concentration of ownership was found1. In the latter countries especially banks own large blocks of shares. The Netherlands is somewhere in between, banks do not hold large blocks of shares as they do in Germany, Italy and Japan, however shares are not as widely held as in the U.S2. In countries with (semi-) widely held shares, a shareholder with a relatively small stake (e.g. 10%) will not be a controlling shareholder per se, but may be a controlling shareholder de facto. Large shareholders are in principal able to appoint board members representing their interests. Furthermore, large shareholders can also exercise power by blocking ratification of unfavourable decisions, or possibly by initiating decisions3. In other words, when they are large enough, i.e. when there are no other 'large' shareholders in the corporation, the largest
Explaining the relevant rules of law, discuss whether Adam owed a duty of care to Callum in this situation.
Law Assignment Question 7 Tort Law Explaining the relevant rules of law, discuss whether Adam owed a duty of care to Callum in this situation. In tort law there is negligence and within this there is the duty of care element, which helps to decide if compensation should be emplaced. The concept of negligence is a difficult one and has been broken into three separate parts: * Duty of care owed by the defendant to the claimant * Breach of that duty of care * Damage caused to the claimant as a result of the defendant's breach in duty of care. All three parts have to be present before negligence can be proved. One requirement for proving the tort of negligence is that a duty of care exists between the claimant and the defendant. In past cases a decision on whether a duty of care was present in a case was decided within the duty of care "neighbour test" which was created by Lord Atkins this was if by using common sense the defendant could see that an action or omission could lead to the harm of another person, then a duty of care would be present. However this theory was updated and modernised into the three-part test, which consists of three questions. Firstly was the damage foreseeable? Was there sufficient proximity between the claimant and defendant? And finally is it fair and just to create a duty of care between the claimant and defendant? When looking at the case
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
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
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
