INTRODUCTION TO THE LAW OF NEGLIGENCE
Negligence as an
independent tort is defined as the breach of a legal duty to take care - as a
result of which -the plaintiff suffers damage.
1) Negligence can be
defined as a failure to exercise the standard of care, where the doer, as a
reasonable man should, by law, have exercised in particular circumstances.
2) Behaviors that
cause unreasonable risks of harm to property
3) A breach of legal
duty to take care, where the doer or defendant causes a damage to the
plaintiff.
2.0 ELEMENTS
To succeed in an
action for negligence - plaintiff must prove the elements of negligence:
2.1 THE DUTY TO TAKE
CARE
·
a defendant will only be
liable if he owes the plaintiff a duty to take care
·
Defined as individuals'
responsibility to conduct themselves in a manner that creates no harm to other
people.
·
The harm can either be
direct physical harm or any action that negatively affects the welfare of
others.
·
An individual will only be
negligently liable if he or she is under a legal duty to take care.
·
This means that we can only
hold an adult liable for negligence if he or she carelessly hits another's car,
for example.
·
However, we may not be able
to treat an underage in the same manner due to the fact that he or she is not
'fully' matured and, therefore, is not bound by the duty of care.
·
A duty of care exist in
normal circumstances where if a person does not take the usual precautions,
another person or his property may be injured/damaged
·
To test the existence of
duty of care - Donoghue v. Stevenson - the neighborhood principle
The
Neighbourhood Principle:
The rule that you are
to love your neighbour becomes in law you must not injure your neighbour,
…..you must take reasonable care to avoid acts or omission which you can
reasonably foresee would be likely to injure your neighbour. And the lawyer’s
question “who is my neighbour…..persons who are so closely and directly affected
by my act that I ought reasonably to have them in my contemplation as being so
affected when I am directing my mind to the acts or omission in questions.
-
The neighbor principle explains how we should apply reasonable care not to
injure or hurt anyone, who comes into direct relationship with us or with whom
we are involved with.
- The
concept of the neighbor relationship outlines the practical boundary in which
we owe a duty of care.
DONOGHUE
v STEVENSON [1932] AC 562
A friend of the plaintiff had purchased for her a bottle
of ginger beer at a café. The plaintiff had consumed some of the drinks but
when she poured out the remainder of the contents of the bottle, a decomposed
snail came out of it. As the bottle was opaque, the plaintiff was unable to see
its contents much earlier. The plaintiff suffered shock and subsequently became
ill. She sued the defendant manufacturers in negligence. She could not commence
her action in contract because there was no privity of contract between the
parties.
The House of Lords held
that the defendants, being manufacturers of ginger beer, owed duty of care to
the plaintiff, as the ultimate consumer or purchaser of the drink. This duty
was to take reasonable care to ensure that the bottle did not contain any
substance which was likely to cause injury to anyone who purchases it in due
course.
·
Must established
‘foreseeability’-
PALSGRAF
v LONG ISLAND [1928] 162 N.E 99
Two
train guards, whilst assisting a passenger, had negligently knocked down a parcel from his arms which, despite its
innocent appearance, in fact contained fireworks. An explosion occurred when
the parcel fell beneath a moving train, causing scales some distance away to
topple on the Plaintiff. Although negligence was proven, the jury nevertheless
held that the plaintiff could not recover because to the injury to the
plaintiff was not foreseeable. According to jury, the plaintiff was “beyond the
range of foreseeable peril”.
INTRODUCTION TO THE LAW OF NEGLIGENCE
Reviewed by Kamaruddin Mahmood
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