NEGLIGENCE: DUTY OF CARE
Negligence is a breach of a legal duty to take care which results in damage to the claimant. In order to prove negligence one must show: 1.
a legal duty on the part of the a person to take care of another, 2.
a breach of that duty and
The consequential damage attributed to the conduct and is too remote. It was also defined as 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. This was as per Alderson B in Blyth V Properties of the Birmingham Waterworks. He further stated that the standard demanded is thus not of perfection but of reasonableness. This means that to prove negligence, the claimant must prove that the defendant owes a duty of care to him/her. The duty of care had not been established until in the 1940s where Lord Atkins in the leading case of Donoghue v Stevenson attempted to lay down the neighbour principle, which would cover all circumstances where courts had already held that there could be liability for negligence. He brought out the rule of loving your neighbour and avoiding acts or omissions that one can reasonably foresee would injure the neighbour. He described the neighbour as persons who are so closely and directly affected by one’s acts. This dictum was accepted and applied unless there is justification or valid explanation for its exclusion. Therefore, in order to establish that a duty of care arises in a particular situation, the action should have affected a person directly. To establish that a duty of care exists, one has to consider the sufficiency in the relationship of proximity or neighbourhood such that carelessness may be likely to cause damages in which case a prima facie duty of care arises and the considerations in which may limit or reduce the scope of the duty to whom it is owed or the damages that may arise. This was the idea in Anns V Merton LBC(1977) by Lord Wilberforce. The requirements that must be satisfied before a duty of care is held to exist were laid down in Caparo Industries v Dickman (1990) 1 all ER 568. The court held there are three separate steps or issues in the “duty of care” inquiry. First, it must of course be reasonably foreseeable that the conduct of the defendant will cause damage to the claimant. This requirement is essential even in a situation of a type (road or industrial accidents; for example) where the existence of a duty of care has long been well established. Secondly, there must be sufficient “proximity” between the parties. And thirdly, “the situation must be one in which the court considers it fair, just and reasonable that the law should impose a duty of care of a given scope on the one party for the benefit of the other.” This statement brings out clearly three elements that is;
Foreseeability of the damage
This deals with the applicability. It depends on the factual analysis of the particular case. Rather than looking at whether the duty exists generally, the courts look at whether the duty is applicable to the particular claimant. Before considering whether a duty of care exists to the particular claimant, the court must first be satisfied that a general duty of care exists in respect of the category of the case in issue. For if the general duty of care does not exist the claimant is barred from claiming and the foreseeability test does not apply. The case of Donoghue v Stevenson where was concerned with the general question of whether a manufacturer owed a duty of care to the ultimate user of his products and it was concluded that he did. The second question is if there was a duty. In this case, a lady bought some ginger beer, which was in an opaque bottle, from a retailer and gave it off to her friend who took its contents before discovering decomposed remain of a snail. She...
References: 1. MARKESINIS AND DEAKIN’S TORT LAW 6TH ED Pgs 116-120
2. SAMUEL, G TORT: CASES AND MATERIALS Pgs 115-142
3. WINFIELD AND JOLOWIZ ON TORT LAW
4. GOOGLE MATERIALS
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