CHAPTER-2: ELEMENTS OF NEGLIGENCE.
It is necessary to have a conceptual framework which helps lawyers to decide whether there is the basis of a claim or possibility of a good defence. Negligence suits have historically been analyzed in stages, called elements. In order to establish in an action of negligence, the claimant must prove each of the following elements:
(i) Duty of care.
(ii) Breach of duty.
(iii) Damage- causation and remoteness.
2.1. DUTY OF CARE:
Duty of care refers to the circumstances and relationships which the law recognizes 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 the injured party or who has suffered loss as a result of their breach
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The basis of the case was that the manufacturer owed a duty of care to the consumer, such that there was no harmful substance in his product, that he ahd breached his duty of care and that the appellant had suffered injury as a result.
The House of Lords reviewed the few precedents and by a majority of two out of three decided in favour of the appellant, thus establishing the existence of tort of negligence for the first time.
However, although it is possible to find cases in which it is arbitrated purely on the basis of foresight that a duty of care exists, it is too primitive to consider foresight or ‘reasonable contemplation of harm’ alone is the test to prove the presence of duty of care. For instance, in Marc Rich & Co. v Bishop Rock Marine , the House of Lords were of the view that, whatever be the nature of the harm caused, the court should consider foresight, proximity and whether in all the circumstances it is fair, just and reasonable to impose a duty of care.
2.1.2.
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In the case Yuen Kun Yeu v AG of Hong Kong (1978) , Lord Keith referred to proximity as a synonym for foreseeablity on one hand, and on the other as referring to the whole concept of the relationship between the claimant and the defendant as described in Donoghue v Stevenson by Lord Atkin. Proximity plays an important role in the reasoning in many cases which deal with the extent of liability of economic loss caused by negligent misstatement. It has also been considered as important in relation to the scope of duty of care in omissions rather than positive acts. In the case of Canadian National Railway v Norsk Pacific Steamship Co (1992), the majority judges in the Canadian Supreme Court went on to reject a general test of proximity as a test for liability pertinent throughout the law of negligence. Thus the concept of proximity is but one of the factors which may apply in the process of judicial reasoning , whereby the judges are able to arrive at the decisions which they believe to be just in individual cases. Proximity has proved to be very important in determining whether a duty of care exists in nervous shock cases or
“The defendant is liable only if the product is defective when it leaves his hands. There must be something wrong with the goods. If they are reasonably safe and the buyer’s mishandling of the goods causes the harm, there is no
The case that I have found to write about is the case of Shakeel “Blam” Wiggins and the New York Police Department in New York City which happened in September of 2013. This case was originally tried in the state of New York court in New York City. It was based on the fact that a NYPD cop didn’t properly fill out a search-warrant application that turned up a weapon as well as a handgun and a cocaine cache. Unfortunately, Mr. Wiggins is an accused drug dealer with a prior record and he may likely walk due to “a technicality.” Therefore, the New York City Police Department as well as the New York City police union were very upset because a dangerous person may be back on the streets due to a supple mistake.
In all parts of Canada (except Quebec), there is no legislation or statute that defines what “negligence” is. How would a court (outside Quebec) determine what definition to
Conseco Grp. Risk Mgmt. Co. v. Ahrens Fin. Sys., 2001 U.S. Dist. LEXIS 2306, at *1. Ultimately, the Court held that in matters involving public concern, whether private or public figure, a plaintiff was required to show actual malice in order to recover presumed or punitive damages.
Was the harm foreseeable? 2. Would the reasonable person take precautions? 3. Did the defendant take those precautions?
I. Introduction There have been at least 112 deaths or injuries reportedly aspired since General Motors Corporation (GMC) released its vehicles with the type III door latches, which one of its engineers reported as problematic, “substandard”, and “unacceptable”. Despite the reported destruction of its entire inventory, GMC refused recall all released vehicles with these door latches and instead preferred to settle associated cases until 1994. One of the most prominent case was Alex C. Hardy v. General Motors Corp., which has been considered as the “largest verdict in automotive product liability history (at the time)” (Butler, Wooten, & Peak n. p.). This paper aims to review this case to better understand the issues involved in relation to tort law concepts, such as the “reasonable man” standard, the “pure contributory negligence” rule, the “active jury reform”, and the “deep pocket” theory.
Talk to an insurance consultant It is recommended to go and talk with an insurance consultant, in order to obtain the right information regarding your case. Consider taking your lawyer with you, as he will know exactly what questions to ask. He is a professional and he know better than you how to act and what to do in this type of situations. Fill the medical negligence claim After you have chosen a professional lawyer, got the copies of medical records and talked to the insurance consultant, it is now time to fill the medical negligence claim.
A Civil Action is a movie based on a true story about an epic courtroom showdown where Jan Schlichtmann, a tenacious personal-injury attorney files a lawsuit against two of the nation's largest corporations. He accuses, Beatrice Foods and W. R. Grace Company for causing the deaths of children from water contamination by the illegitimate dumping of chemical wastes into natural water sources. The first issue brought up in this movie is concealing or misrepresenting of the truth also known as deceit. Deceit occurs when an individual withholds or misrepresents information by making false statements with the intent of altering another person’s position on a matter. In the movie, Jan does some personal investigations after he notices that there’s
Third, the plaintiff must prove that the defendant’s actions were the cause of the plaintiff’s injuries. Determining the cause, is often done by applying the “but for” test. An injury would not have occurred “but for” the defendant’s actions. In short, a person must firstly has a duty of care and he breached his duty that causes damages or loss to the other party to be liable for negligence.
Julian wants to sue David, the other player. In his complaint, which tort theory is Julian’s attorney most likely to allege and what will he have to prove for Julian to be successful? Julian’s attorney is most likely to allege Intentional Tort for his complaint to be successful. An intentional tort occurs whenever someone intends an action that results in harm to a person’s body, reputation, emotional well-being, or property. During the game David kicked Julian in the head while Julian was in possession on the ball.
• an order to compensate for loss (s 1316H) Whether a director has exercised a reasonable degree of care and diligence ‘can only be answered by balancing the foreseeable risk of harm against the potential benefits that could reasonably have been expected to accrue to a company from the conduct in question’ (ASIC v Doyle & Anor). DEFENCES IN CASES OF BREACH OF DUTY Directors can raise the following defences if a breach of the duty of care is alleged: 1. reliance on a decision made by another person 2. delegation of decision-making power to another person 3.
Here a compensation tribunal was set up to compensate the families of victims who had died in the Stardust tragedy. The grieving father of one victim sought a review of a decision made by the tribunal to award the mother of a victim compensation and the father no compensation. The court refused to quash the decision of the tribunal and, strangely, agreed that there were circumstances which justified awarding of compensation to one parent and not the other. This decision was made by a court which was quite critical of the approach taken by Lord Diplock in GCHQ. Henchy J. said he would be ‘slow to test reasonableness by seeing if it accords with logic’ and would be ‘equally slow’ to accept the moral standard criteria believing it a vague and inconsistent principle to base reasonableness on.
This rule was laid down by the Privy Council in the case of Overseas Tankship (UK) Ltd v Mortis Dock & Engineering Co Ltd (The Wagon Mound no 1). In this case the defendants spilled furnace oil from their ship into Sydney harbour and damaged the plaintiff’s wharf. The oil subsequently caused a fire when molten metal dropped into the water and ignited cotton waste floating in the port. The Privy Council held that the defendant is not liable. Because a reasonable man could not possibly have foreseen the wharf would be damaged in this way, as a result of the defendant’s act.
Introduction Negligence covers different forms of behaviour and rights in today’s society. The general principle of negligence guarding today’s society is such that a person should not harm people to whom he/she owes a duty of care. Furthermore, the failure to act reasonable is considered to be negligence. A level of care that a reasonable man under the same circumstance would have exercised a better level of care to whom he or she owes the legal duty too.
INTRODUCTION TO VICARIOUS LIABILITY The misconduct doctrine that imposes responsibility upon one person for the failure of another, with whom the person incorporates a special relationship (such as Parent and child, employer and employee, or owner of vehicle and driver), to exercise such care as a fairly prudent person would use underneath similar circumstances. Vicarious liability could be a legal belief that assigns liability for an injury to someone who failed to cause the injury however who incorporates a specific legal relationship to the one who did act negligently. It’s conjointly spoken as imputed Negligence. Legal relationships that may cause imputed negligence embrace the connection between parent and child, Husband and wife, owner of a vehicle and driver, and employer and employee.