"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,
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
Is Euthanasia morally acceptable? When does a duty of care arise?
Compared to other professions, sad to say, the profession of medicine is the only profession which is very vulnerable to criticisms from the public for their acts during their course of duty of care. This is so because the doctors belonging to the medical fraternity deal with precious commodities, which come in the form of human life. In ancient times, the medical profession was placed on the highest pedestal and commanded public awe and respect. Today, such an image is clearly wavering. The medical profession in the recent past has been increasingly confronted with legal issues on mercy killing, both within the public or the government. Euthanasia Scholars all over the world, namely doctors, lawyers, philosophers, and religious leaders have been debating on this issue for many years. Euthanasia or 'mercy killing' is the intentional killing for the benefit of the person. Mostly, it is performed on the request of the person himself; however there are certain cases whereby that dying person could not make his own request because some may be severely unconscious which means to say in a vegetative state.1 The Pro-Life Alliance 2defines it as: 'Any action or omission intended to end the life of a patient on the grounds that his or her life is not worth living.' The Voluntary Euthanasia Society looks to the word's Greek origins - 'eu' and 'thanatos', which together mean 'a good
Describe briefly the development of the Courts' approach to the idea of the duty of care from early case to
) Describe briefly the development of the Courts' approach to the idea of the duty of care from early case to "Caparo"; and 2) To what extent, if at all, have the Courts been willing to extend liability to fresh situations in cases since "Caparo" to the present (discuss briefly? The concept of duty of care serves to define the interests that are protected by the tort of negligence1. Negligence is the breach by the defendant of a legal duty to care, which results in damage to the claimant2. Prior to 1932 there was no general principle of duty of care, there were merely a few clearly defined circumstances where the courts held a duty of care was owed. E.g. Parent and child, Doctors and patients, and Motorists and other road users owe a duty to one another. An attempt was made to create a rationale for all the discrete duty situations by Brett MR in Heaven v. Pender (1883)3. The majority of the court of Appeal refused to establish a general principle to test when a duty of care arises and decided to maintain the traditional case by case approach. The development of the doctrine of duty of care really began with the case of Donoghue v. Stevenson (1932)4 and the establishment of the 'neighbour' principle by Lord Atkin; "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". The 'neighbour'
The area of tort law regarding 'a duty of care' in negligence has been a matter of much controversy for some time, the present law does not contain a great deal of clarity and definition in regard to a general principle of who can claim and who cannot.
"Duty of care is one of the ways in which risks can be allocated in society... This will have both social and economic implications, and hence the technical criteria of duty... should not be taken too literally. They are merely mechanical devices for performing and expressing something deeper, that is a decision or an understanding about how risks should be allocated." Kidner, casebook on Torts, 7th Ed. P 49 The area of tort law regarding 'a duty of care' in negligence has been a matter of much controversy for some time, the present law does not contain a great deal of clarity and definition in regard to a general principle of who can claim and who cannot. The reasons for this are also highly debatable, however much focus has been directed towards the courts use of public policy considerations as a major cause to why such limitations occur, and as one of the causes of the problematic nature of the field of negligence. The aspect of 'nervous shock' or 'psychiatric injury' is a sound example of the evident ambiguity arising in the law of tort, as is to be explored below. The first attempt of introducing a general principle in order to assess whether a duty of care should be owed in the tort of negligence was presented in the case of Donoghue v Stevenson1, wherein Lord Atkin stated the outline for this principle, "The rule that you are to love your neighbour becomes in law,
Outline the elements of the tort of negligence.
Paul Whitby Thetford Adult Education Centre 18429 Component Code: 1177/3 Examination Session: 2000/2001 TORT, Outline the elements of the tort of negligence. List of Sources: See Page 5 (a) Outline the elements of the tort of negligence. Summary Negligence has been built up from decided cases over many years. All torts comprise of an infringement of a person's rights in the first instance, and must be due to someone else's negligence; fault, or intention. The two basic criteria establish whether or not a tort has been committed. However, these two requirements were too general and have been furthered into those requirements that are outlined below. . The first is the duty of care that must exist in the first instance and was established in Donoghue v. Stephenson (1932), which created the 'neighbour principal'. However, further to this it is reasonable to expect the negligent party to have been able to foresee that their act would be negligent, this was established in Bourhill v. Young (1943) and King v. Phillips (1953) both these cases established that the duty of care must be "foreseeable". It would be unreasonable and unjust to hold someone responsible for something that was unexpected, or of a freak nature. In recent years the duty of care has been furthered by the courts in Caparo Industries plc v. Dickman (1990). Which established the criterion that the
Law- Negligence
A negligent misstatement or careless statement causing physical damage is actionable in negligence, as is a fraudulent statement causing economic loss in the tort of deceit. It was only in Hedley Byrne v Heller [1963] where the defendant bank falsely and negligently gave its opinion that a company was financially sound that a careless statement causing pure economic loss was held actionable by the House of Lords. The courts system develops incrementally as new cases are heard. Hence, this essay will focus on one aspect of tort law- the claim for economic loss, which was first demonstrated in the Hedley Byrne case and how it has led to other decisions of the courts in subsequent cases. The facts of the Hedley Byrne case are that the claimant was an advertising company that was offered work by a small company with whom they had no previous dealings. It sought a reference from the company's bank which was prepared without any checks being made into the current state of finances. In reliance upon the bank's reference, the claimant carried out work for the company which then went into liquidation before any payment was made. The claimant sought to recover its losses from the defendant bank on the basis of its negligent misstatement. The legal principle which also led to the development of the courts is that the House of Lords held that there were circumstances in which a person
Breach of statutory duty- tort law
Most statutes passed by the Parliament impose duties on individuals, public bodies or organizations. The tort of statutory negligence is concerned with finding out whether breach of those duties set out by parliament gives rise to individuals taking private action. For an action to be successful in the tort of breach of statutory duty the claimant must show that the statutory duty allows him/her to sue for damages and that duty was owed to the. The claimant should also be able to prove the defendant's guilt of breach of statutory duty and that he suffered loss (es) as a result of the breach. The claimant should also be able to prove that the damage was of a type that the statute was intending to prevent. The purpose of this essay is to advise Jolene and Kenton as to whether they have a claim against Borsetshire County Council under breach of statutory duty. The courts did outline that careless performance of a statutory duty does not automatically give rise to a right of action unless there is a common law duty of care in negligence as set out in X (minors) v. Bedfordshire County Council1. Most statutes do not expressly state whether or not individuals have the right of action in the case of breach of statutory duty. At the same time it should be noted that not all breaches of statutory duties will lead to damages being awarded to the claimant. To try and shed light on the
Questions related to the tort of negligence.
(A) This question is related to the tort of negligence. There are three elements that must be present for an act or omission to be negligent; (1) The defendant owed a duty of care towards the plaintiff; (2) The defendant breached the duty of care by an act or omission; (3) The plaintiff must suffer damage as a result - be it physical, emotional or financial. The court might decide that Freddy (the plaintiff) was owed a duty of care by Elvis (the defendant) if they find that what happened to Freddy was in the realm of reasonable forseeability - any harm that could be caused to a 'neighbour' by Elvis' actions that he could reasonably have expected to happen. The 'neighbour principle' was established in the case of Donoghue v. Stevenson (1932). Donoghue was bought a ginger beer by her friend from an ice-cream parlour. She discovered a partially decomposed snail inside the opaque bottle. She claimed that she suffered from gastro-enteritis and nervous shock as a result, and sued the manufacturer. She could not sue for breach of contract (the contract being that the manufacturer would provide the consumer with products that would not harm her) because her friend had purchased it for her, so she sued for negligence. Lord Atkinson, who was the judge at the trial, said the case hinged on the question, do the manufacturers owe the consumer, as well as the buyer (the parlour), a duty
Defences to Negligence & Vicarious liability.
Defences to Negligence & Vicarious liability. Volenti: volenti non fit injuria This is a total defence to a negligence claim. However the rules to which apply are complex: Knowledge of the risk: In the late 19th Century, it was seen that if you had any knowledge of the risks that you were exposing yourself to, and did so voluntarily, then you could not make a claim. This changed over the years, with the idea being that where the negligence of the Defendant increased the more the Plaintiff must have given express clear assent to the assumption of that risk before the incident. Mere knowledge of the risk is not enough, there must be a clear waiver. *Dann v Hamilton [1939] 1 KB 509 The Plaintiff accepted a lift from the Defendant knowing that he was very intoxicated. The Defendant crashed causing the Plaintiff a lot of damage. She was said to have given clear consent because the dangers were very obvious. Smith v Baker The employee must have had knowledge of the risk and have agreed to undertake this risk NB: this is now tempered by UCTA. *Morris v Murray [1991] 2 QB 6 The Plaintiff got into an aeroplane with the Defendant. The Defendant had consumed an exceptionally large quantity of alcohol. They died in the ensuing crash. It was decided that the risks had been glaring, and as such he had agreed to waiver his rights. *Wooldrige v Sumner The Press
