Negligence law case analysis. As a customer, Olivia injured by an invalid carriage (Emmas) when she was shopping in Ploymart. Was there a breach of duty on the basis of a failure to protect?
Part 1 The relevant law Apparently, the law of Negligence would be involved in the first case. There are three matters for the tort of negligence: a legal duty of care, the defendant breached this duty and a reasonably foreseeable damage suffered as a consequence of this breach. The standard of care is required in the tort of negligence. A reasonable person is a prerequisite for the standard of care (Blyth v Birmingham Waterworks), otherwise, the person is hypothetical (Glasgow Corporation v Muir). If these requirements could be satisfied, the negligence can be proved. Whether a duty of care exists In this case, Olivia was shopping in Polymart therefore the relationship between two parties is customer relationship. Besides, Emma and Olivia were shopping in Ploymart at the same time so the relationship is similar to road user/ other road users which have already been established in law. These relationships are close enough to set off a duty of care which relates to the 'neighbour' principle in (Donoghue v Stevenson) -"a reasonable care should be taken by a person to avert acts or omissions which would directly induce reasonably foreseeable injury towards someone." (Maclntyre, 2008) However, the duty requires to be imposed reasonably and fairly (Caparo v Dickman). As a result, Emma and Polymart owe Olivia a duty of care. Whether there was a breach of duty As a customer,
Describe the elements of the Tort of Negligence and critically analyse their practical applications.
Describe the elements of the Tort of Negligence and critically analyse their practical applications. Torts could be intentional or could arise out of negligence: people are responsible for injury caused to others not only as a result of their willful acts, but also by the want of care (lawschoolhelp). Tort of negligence arises out of the breach of a duty of care which is owed by people to others (Wikipedia).The principle of the tort of negligence is that all individuals should "exercise the standard of care that a reasonable person would exercise in similar circumstances", in order not to hurt others (lawschoolhelp). The tort of negligence, in contrast to intentional torts, does not require intent from the side of the tortfeasor, nor knowledge or belief by the tortfeasor of what the consequences of his of her action or non-action are. The tort of negligence only requires that the act or omission has to create a risk as a consequence of it, and that this risk is foreseeable by a reasonable person in the same situation (torts). 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
Explain and define the concept of "duty of care". Can it adequately distinguish situations which should give rise to liability from those which should not?
Explain and define the concept of "duty of care". Can it adequately distinguish situations which should give rise to liability from those which should not? Lord Atkins in the case of Donoghue v. Stevenson1 was the first to extract and apply a general duty of care ion in the tort of Negligence because this was a general duty of care, a duty that could exist without any pre-existing contractual relationship. Therefore, the common law since the initial landmark case of Donoghue has attempted to form a principle, in what would be too wide a general principle, that can distinguish between situations that do and those that do not give rise to a duty of care. It is doubtless that there are many cases there has been a development of a coherent principle that can adequately identify situations in which a duty of care has arisen. However, it is questionable whether the common law has always given adequately clear lines of principle, even more contentious is whether the common law is actually capable of extracting and forming a coherent and lineal principle that can be applied to a wide range of diverse circumstances. A duty of care is concerned with a party who by breach of a standard of care that should have been adopted in those circumstances has caused damage to an innocent party. The innocent party who may or not may have a pre-existing contractual relationship will be able to
TORT ESSAY - NUISANCE AND NEGLIGENCE
TORT ESSAY - NUISANCE AND NEGLIGENCE A number of aspects of liability rise from this case study and each one will be discussed. With regards to the headaches suffered by Karl, it is necessary to look at private nuisance. Negligence is disregarded as it is assumed from the details in the case study that the headaches suffered are not so serious as to cause personal injury, it is just described as 'mere discomfort'. Such a claim under the law of nuisance requires three factors to be fulfilled. The first being a continuous interference. This is shown in De Keyser's Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257. From the case study one can assume that it is a continuing interfering act and not a one off. Secondly, the interference must be unlawful or unreasonable. This is up to the claimant to prove. The rule for this is sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's). The locality in this instance reflects the unreasonableness of Jane's actions. It occurred in a residential area and therefore such Gases were not to be expected. The duration of the act will also be taken into account. Because Jane is a young inventor it is assumed her work is an ongoing process and not a one off as explained above. The seriousness is also considered. In Walter v Selfe (1851), Knight-Bruce V C said "an inconvenience materially
In the early 1800's the tort of negligence emerged as a separate category of torts due to the fact that actions in the tort of negligence were increasing significantly during that period.
In the early 1800's the tort of negligence emerged as a separate category of torts due to the fact that actions in the tort of negligence were increasing significantly during that period. Subsequently, the concept of the imposition of a duty of care in negligence emerged with cases such as Heaven v Pender (1883), and more importantly the case of Donoghue v Stevenson (1932) offered a generalized concept of duty, which could be applied in a variety of circumstances. As a result, it is now a well-accepted fact that duty of care is a prerequisite to a successful negligence claim. (Murphy, 178). In an effort to limit actions involving negligence, the courts devised a series of tests in order to arrive at a conclusion as to what elements are required in order to establish duty of care. However, these tests have been criticized on many different levels. The approaches associated with these tests ought to be outlined in order to conclude whether it can be agreed with Lord Roskill that, "there is no simple formula or touchstone to which recourse can be had in order to provide in every case a ready answer to the question whether given certain facts, the law will or will not impose liability for negligence." (Caparo Industries plc v Dickman [1990]). In 1932, Lord Atkin introduced the notion of the 'neighbour principle,' (Donoghue v Stevenson) which widened the scope of negligence
In the "A" part of this paper we'll go through several cases to which the tort law can be applied. The "B" part is a discussion of liability, standards and duty of care.
Tort Law Introduction The Law of Tort is a branch of the civil law which provides possible remedies for the protection of a person's interests in relation to different forms of loss which may be experienced as a result of different types of incident. Examples of loss may include physical damage to the body or to property, economic loss, emotional distress and injury to reputation. Various situations may give rise to such damage: traffic accidents, work-related incidents, medical incidents, economic loss caused by professional incompetence, incidents between adjoining neighbors and damage caused by animals. In the "A" part of this paper we'll go through several cases to which the tort law can be applied. The "B" part is a discussion of liability, standards and duty of care. A. Here we'll apply the tort law to three situations and will define how each person can be helped in the following situations: Property damage Bob's mobile phone is damaged because one of the sprinklers bursts in Diana's gym. Solution Diana knew that her fire-protection system should be serviced each year. The avoidable damage was negligently caused because she didn't take care of it. Her negligence caused damage which is to be compensated and she owes Bob a duty of care like in case Home Office v Dorset Yacht Co Ltd1: "... The fact that the immediate damage to the property of the respondents
Case Note - Stone & Dobinson 1977. The details contained in this case are very emotive and raise some important issues surrounding the issue of care and the duty owed to a person who is unable to care for themselves
Shaun Rogers – LW508 Criminal Law – D.Dinsmore R v John Edward Stone R v Gwendoline Dobinson [1977] 2 All ER 341 Court of Appeal Case Note The Facts Stone, a 67-year-old man partially deaf and almost blind lived with his younger partner Dobinson. Also living with Stone and Dobinson was Stones adult son Cyril. All had capacity issues. Stones anorexic sister Fanny came to live with her brother and his mistress as a lodger. Fanny suffered from anorexia nervosa. When living with her brother and his partner, Fanny’s condition worsened. Attempts were made to help Fanny but these were ineffective. Fanny died. Judgement Lord Justice Geoffrey Lane made it clear that there was no dispute as to the matters upon which the jury had to be satisfied before they could convict of manslaughter.[1] These were, . That the defendants took on the care of a person who was unable to care for themselves, whether this be due to the age or infirmity of the person being cared for. . With regards to the defendant’s duty of care, they were grossly negligent. . That by reason of such negligence the person died. It was suggested by Mr. Coles for the appellants that Fanny cast a duty on her brother and Mrs. Dobinson because of the fact she became infirm and helpless. He said the appellants were entitled to do nothing leading into what he believed to be an analogous example, which was
Tort question - negligent misstatement in the Tort of negligence
Tort question - negligent misstatement in the Tort of negligence a) Henry (C) has rights against Gordon (D) as far as C relied upon D as a professional, and D knew that C would rely on his expertise, as set out in Hedley Byrne v Heller (1964); whereby C was an advertising agency who had asked another firm; Easipower Ltd to buy advertising space on their behalf. The bank of Easipower; Heller said twice that they were respectable, but this was said with a disclaimer. The advertising agency then proceeded with a contract with Easipower. Easipower subsequently collapsed, and went into liquidation, which as a result left Hedley Byrne to pay for the advertising space. The House of Lords held that no duty of care was owed, due to there being no proximity. Also the disclaimer used prevented liability. The 5th limb of Hedley Byrne; the reasonably foreseeability test; 'did D voluntarily assume responsibility to give advice or information?' Which is best demonstrated where D undertakes some professional task, in the knowledge that it is really c who is really paying for it (albeit indirectly) 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
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.
TORT 1 Coursework Negligence consists of three elements: a legal duty to take care; breach of that duty and damaged suffered as a consequence of that breach. Of which a common definition is: "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." Tort of negligence importance begins with Lord Atkin's ground breaking judgement in Donoghue v Steveson [1932] AC 532. Where the claimant argued that she had suffered shock and gastroentertritis after drinking ginger beer from an opaque bottle out of which a decomposing snail had fallen when the dregs were poured. A friend brought her the drink so she couldn't sue in her own right in contract. The House of Lords held that the manufacturer owed duty of care, liable in negligence to the consumer of its products. Lord Atkin's judgment contained critical elements; negligence would be proved by satisfying a three part test: 'The existence of a duty of care owed to the claimant by the defendant' 'A breach that duty by falling below the appropriate standard of care' 'Damage caused by the defendant breach of duty that was not too remote a consequence of the breach' In order for Crispin to successfully claim in negligence, he has to prove that a Duty of Care existed between Sun Loungers Syndicate and
"The triumph of negligence is a product of industrialisation; it is a disguised subsidy to business."
Common Law History. "The triumph of negligence is a product of industrialisation; it is a disguised subsidy to business." The following report is against the above motion. Before stating why, it is important to explain what the arguments for the motion are. Negligence is a refusal or an omission to take care when performing a task, thus putting people in jeopardy. Manchester, in Modern Legal History (1980) ch.12 (3), argues that there were various problems involved with negligence cases in the pre-industrial age. He points to problems encountered in the courts involving the two forms of action that dealt with negligence, (Trespass and Case). He says it was easy for a wrong doer to evade prosecution, for if an action was brought in trespass the defendant would simply state that their servant had committed the act, and that the proper action lay in Case. But the if action was brought in case the master could contest that they had committed the act, and that the proper action lay in trespass. However, this report will later show that the judiciary were not always ridged to these arguments, and a degree of flexibility was sometimes allowed which helped shape the laws application and restrict the use of these 'loopholes'. Another point to be noted is that there was also negligence cases brought under the writ of asumpsit, but this report will not digress into this area.
