TORT

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Author:
Neevie
ID:
170852
Filename:
TORT
Updated:
2012-09-14 12:26:06
Tags:
NEGLIGENCE
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Description:
The Duty of Care
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  1. Negligence as a tort is a breach of a legal duty to take care which results in damage to the claimant.
    "Negligernce is an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do" - Alderson B in Blyth v Birmingham Waterworks
    • In order to succeed in an action for negligence a plaintiff must show
    • 1. a duty of care was owed
    • 2. negligence - the standard od care was insufficient
    • 3. causation - the defendant must have caused the act or the injury
  2. The first major development in the 'Duty of Care Test' is Donoghue v Stevenson [1932]
    • The plaintiff suffered shock and a bout of gastro-enteritis after she discovered the remnants of a decomposed snail in the bottom of a bottle of ginger beer.
    • The question arose as to whether she could persue a claim against the manufacturers of the ginger beer. At the time it was the view that a contractual relationship needed to have existed in order to make a claim. The contractual relationship existed between the plaintiff and the vendor of the drink rather than the manufacturer.
  3. This neighbour principle - a person owes a duty to
    anyone they can reasonably foresee that they could injure either by their acts or their omission
    A two tiered test was developed in Anns v Merton Urban District County Council [1978]
    • Ist - along with the test for reasonable foreseeability was the test for proximity between the plaintiff and the defendant.
    • 2nd - if this test was satisfied the court must consider whether there are any reasons not to recognise a duty of care
  4. The leading case in signaling the rejection of the two tier approach in Anns and a move to a more incremental approach was in Caparo Industries Ltd v Dickman [1990]
    • In this case the claimants sought to recover for losses sustained after relying on an incorrect evaluation of a company they subsequently invested in.
    • In rejecting earlier tests the HOL laid down their own 3 step test which required
    • Foreseeability
    • Proximity
    • whether the imoposition of a duty of care would be 'just and reasonable'
  5. The English Approach
    • Donoghue v Stevenson [1932]: the neighbour principle established
    • Anns v Merton Urban District County Council [1978]: developed the two tier test
    • Caparo Industries v Dickman [1989]: the test of just fair and reasonable was added to the two tier test
    • Under Caparo: Once proximity of relationship and foreseeability of damage is established then is it fair and reasonable to impose a duty of care
  6. The Irish Approach: Anns was interpreted differently in Ireland than in English courts. In Irish courts Anns was a confirmation of the principles in Donoghue v Stevenson
    Proximity was seperate from foreseeability where English courts equated proximity with foreseeability
    English courts favoured the incremental approach (rule based)
    Irish courts followed a broader more principal based approach
    • Ward v MacMAster [1988}:
    • 1. Foreseeability of damage
    • 2. Proximity of relationship
    • 3. Public policy considerations i.e. before a duty is held to exist it must first be shown that the case is one which was analogous to a case previously decided
  7. The English courts in Caparo have adopted a very conservative approach towards establishing a duty of care. It must first be proven that:
    • 1 the damage was reasonably foreseeable
    • 2. there was a proximate relationship
    • 3. no policy factors exist which lead to a finding against the existence of a duty of care
    • 4. the imposition of a duty of care is just fair and reasonable

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