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Beastly Essay

1015 words - 4 pages

NegligenceWhat is negligence?Negligence: A breach of legal duty care which results in the damage to the claimant (Rogers W.V.H 2002 Winfield and Jolowicz on Tort 16th edn, London: Sweet & Maxwell p.103)To prove negligence, the burden falls on the plaintiff to prove all of:Claimant owed a duty of careThe damage was not too remoteThere was a breach of duty of care.Claimant suffered damage as a result of the breach (causation)What then, constitute as legal duty of care?This concerns the relationship between the plaintiff and the defendant. There must be some sort of obligation for the defendant to take proper care to not cause an injury to the claimant at all times. There are 2 scenarios where one can owe a duty of care to somebody:Established duty situation: usually have some sort of special relationships between the partiesOne road user to anotherEmployer to employeeDoctor to patientManufacturer to consumerSolicitor to clientThose established by case lawsMajor developments of negligenceThe Neighbor PrincipleOutside of established duties, a duty of care can arise from precedents in case law. Initially, the "neighbor principle" test was used to determine whether a duty of care actually existed between parties.Donoghue v Stevenson [1932]"The rule that you are to love your neighbor becomes in law, you must not injure your neighbor .....you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor
 Who, then, in law is my neighbor?
Persons who are so closely and directly affected by my act(proximity) that I ought reasonably to have them in contemplation as being so affected... " - Lord Atkin in the Donoghue case judgmentWhat then, is the neighbor principle?Test of reasonable foreseeabilityNeighborhood proximityThe flaw in this however, is that:In cases like economic loss and psychiatric injury, proximity in the neighbor principle has little application, hence duty is much more difficult to establish unlike in situations like personal injury and property damageThe neighbor principle however, is not limited in its application. Citing Lord Macmillan in the snail case:"The categories of negligence are never closed."This indicates that the court can formulate new categories to reflect current social view and make decisions based on public policy.Application and development of the neighbor principleHome Office v Dorset Tacht Co [1970] AC 1004Although the defendant, but the third party had not directly committed the wrong - the boys should've been under the control of the Home Office. Any liability would then be based upon an omission.Hedley Byrne v Heller [1964] AC 45Carelessness of statement causing pure economic loss to plaintiffCase of pure economic loss, the neighbor principle therefore is not applicable3. Ann v Merton LBC (1978) - The Ann's TestIn the Ann's case, Lord Wilberforce set out what has been described as the 2 stage test for determining duty of care:First one...

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