First, the knowledge of the situation is in the ordinary course of things which mean imputed to the parties whether or not they knew about it. Second, the actual knowledge of special circumstances outside ordinary course of things but was communicated to the defendant or otherwise known by the parties. We can look into the case of Transfield Shipping Inc v Mercator Shipping Inc where it is clear that this test is about identifying the scope of an implied assumption of responsibility by the defendant in the contract. It requires an assessment of the common expectation of the defendant 's liability. On the other hand, in tort and negligence matter, once a breach in the duty of care had been established, a defendant was liable for all the consequent damage no matter how unusual or unpredictable that damage might be.
·Sometimes people excuse the damage they cause by saying this was a mistake or that they did not mean to cause the damage. Is this a valid excuse to avoid liability for damage caused? Explain your answer. With the above question about people that is liable to a damages due to their civil wrong and now finding an excuse to avoid damages. In law, there is no excuse and the defaulter would therefore be liable for their offence committed except if the judge in a court of law based of their reasonable doubt found that it was not proven true that such person would be liable for a damages.
The principle of negligence is to determine a guilty party when someone acts in a careless manner and causes injury to another person. Negligence names the careless person legally liable. In order to win, the plaintiff must prove four different elements. The first element that must be proven is Duty of Care. The defendant must have owed the plaintiff legal duty of care.
The position of the law is that a wrongful act done intentionally provides for an actionable claim, regardless of bad purpose or a motive to injure or cause harm . The rationale behind this principle is that one can be said to know the consequences of his actions, and hence is assumed to have intended them. Once intention is proved, the purpose or motive is
The plaintiff needs to prove that he suffered damages or loss as a direct consequence of the defendants act. The liability of a tortious act may result in punishments like imprisonment but the main aim of the law of tort or torts is to make sure that the victim, who incurred damages, gets compensation or relief. Among the different types of compensation available against the damages incurred, the victim may recover loss for the pain and suffering caused to him because of the act and also the medical charges sustained by
Question 1 Duty of care is defined as “the legal duty to take reasonable care to prevent causing harm or injury.” There will be a breach of a duty of care owed to the claimant if there is an act or omission that causes the harm or injury. The neighbour principle is where a person can reasonably foresee that his or her actions may cause physical damage to another person or property of others, thus there is a duty to take reasonable care in most situations (Law & Martin (ed.) 2013, p. 187). Lord Atkin developed the neighbour principle in the famous case of Donoghue v Stevenson  AC 562, also known as the Snail in the Bottle case, to determine when a duty of care might arise. The existence and extent of the duty of care will depend on the
The word ‘tort’ in law means a legal wrong or injury that has several elements, of which the most important element is that it is redressible in nature for the benefit of the person wronged or injured. The wrong or injury can consist of several civil wrongs like negligence, assault, battery, defamation etc. Therefore, tort is a breach of some duty, independent of contract, giving rise to a civil cause of action and for which compensation is recoverable . In tort law, the aggrieved party is provided relief in the form of damages. Damages are a form of compensation given for breach, loss or injury suffered by the plaintiff.
Judge Haugh declared that “One is not entitled to seek damages for mere bad manners or mere sensitivity, but there is however an action known to the law of tort that entitles a person to compensation when they suffer a recognized psychiatric consequence of harassment ,that is inexcusable conduct intentionally or recklessly handed out. Before he can succeed in an action for the wilful or reckless infliction or emotional harm there must be a form of harassment or a form of misconduct formed on the part of the defendant that any right-minded right-thinking person would consider to be gratuitous or reprehensible. It must be done either with the intention of humiliating or embarrassing the butt of the harassment ,or it must be done where there is a risk of such an adverse reaction and that risk is unjustifiably
Holding in favour of the defendant, the Chancery Division held that the "comparison to be made in considering infringement was between the use of the plaintiff's mark in a nonnal and fair manner in relation to the goods for which it was registered and the way the defendant actually used its sign, discounting added matter or circumstances". Jacob J., speaking for the Chancery Division, came up with certain conceptual tests to determine product relatedness. According to the learned Judge, the following factors assumed relevance while considering the issue of product
Even though they were within one court system, both establishments were dealing with cases in their own individual ways. In the case of Patel v Ali , it was evident that equity exercises discretion, nonetheless this can be questionable. The differentiation between common law and equity is shown clearly in this case within the remedy that was offered, as mentioned before equitable remedy is discretionary whereas common law does not. The common law remedy proposed to Patel was to pay damages; due to the dilemma she was in had created unfairness, so using equitable remedies (specific performance) would have failed. “A trust is an equitable obligation binding a person (trustee) to deal with property over which he has control for the benefit of persons (beneficiary)…” .