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Foreseeability. Negligence and Tort - Assignment Example

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Foreseeability
In an event that the plaintiff fails to prove any one element, then he or she loses the entire tort of negligence claim. The following elements should be proved: factual and legal causation, duty of care, damages, and breach of duty…
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Foreseeability. Negligence and Tort
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Download file to see previous pages The essence of existence of specific relationship between parties to establish negligence claims is based on the logic that such a claim can only arise in acts and omissions relating to these elements (Cooke, 2005, p. 12). Normally, it is assumed that such claims can be levelled against a third party because such party is liable for acts or omissions that led to harm, injury, or loss. However, in some circumstances, an individual may be in specific relationship with a third party and have a duty to control the conduct of the third party so as to prevent harm, injury, or loss to the claimant (Kidner, 2006, p.25). Control over the third party includes but not limited to the following: parent and child, car owner and a drunken or incompetent driver, mental hospital and patient, parent and child, and gaoler and prisoner. The need for control over a third party is informed by the position taken by Lord Goff in Smith v Littlewoods [1987] 1 All ER 710 at 731 when analyzing the rule of mere- omissions and making considerations for the exceptions to this rule. Lord Goff argued that there are some circumstances where the courts have established affirmative action duties. One of these circumstances is that the defendant has control over a third party who has caused damage to the claimant.
Control over a third party is an affirmative action that has been given rise by a number of relationships. Examples of these relationships are parent and child and employer and employee, where the defendant has an affirmative duty to prevent harm (Kidner, 2006, p. 71). Normally, there should be a chain of causation between the negligence of the defendant and the damage caused to the claimant, as decided in Rouse v Squires [1973] QB 889. In such circumstances, the third party may be held liable for the claimant’s damage. However, where the defendant has control over a third party, or in circumstances where the third party is ...Download file to see next pagesRead More
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