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Duty of care: An evaluation of its fitness for the purpose - Assignment Example

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Duty of Care: An Evaluation of its Fitness for the Purpose Introduction The law of persons has developed over many years. As a result, various elements have been being introduced while others have undergone appropriate amendments to meet the intended purpose…
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Download file to see previous pages Thus, the idea of negligence or unreasonable behaviour was introduced in the practice of tort law in order to control foreseeable misdeeds and related mishaps whose occurrence might be injurious to other parties in the society. Despite the fact that the law of tort has significantly contributed to the maintenance of law and justice, some scholars argue that the duty of care imposes a generalized responsibility of people. In Anns v Merton London Borough Council [1978] AC 728, Lord Wilberforce argued that there ought to be some element of foreseeable harm and reasonable proximity between the events of the parties involved in order to ascertain the existence of duty of care. However, Brenan J intellectually overruled Lord Wilberforce’s approach in distinguishing the conceptual duty of care in Sutherland Shire Council v Hayman [1985] 60 ALR 1. 2 With that in mind, this paper evaluates the essence of duty of care to determine whether it is fit for the purpose in line with the propositions of Brenan J. Particularly, the paper provides a succinct discussion on the various components of negligence that define the need for a broad consideration of facts beyond the mere existence of prima facie duty of care. Thus, the paper culminates with a rational perspective of the duty of care and its relevance in contemporary law. Duty of Skill and Care The duty of skill and care is a matter of rational judgment based on practicable reasoning that other persons in the same situation would ordinarily resort to a similar judgment. In the case of tort, there is need to consider the possibility of foreseeable harm from unreasonable commission or omission of an act from which a person may suffer personal injury or injury to their property. On the other hand, the duty of care is defined as the obvious expectation of diligence to ensure that one’s actions are not injurious to other people or their property as postulated by Abraham Kenneth.3 In defining the legal context of the duty of care, Lord Aitken stated that the duty of care can be proven when one’s act of omission or commission might result in foreseeable injury to another person. This definition was well illustrated in Donoghue v Stevenson [1932] AC 562 House of Lords.4 It was held that the defendant owed Mrs Donoghue the due of care to ensure that the content of their product was safe from any offensive materials. Accordingly, the duty of care is often recognized by law as the relationship to situations that would otherwise require one to take reasonable care to avoid mishaps resulting in reasonably foreseen injuries. Breach of such relationship would attract legal redress for purposes of serving justices and restoring order. Ideally, there are three essential components in determining the duty of care. The first one relates to reasonable foresee-ability. It is practically expected that a driver in his performance of the activity will be careful enough not to run over other road users including fellow motorist and pedestrians, or cause damage to the adjacent property. Consequently, a reasonable person would not resort to commit or omit such acts that might otherwise cause personal injury to people or damage of property. In Ande v Gabriel [1975] 12 CCHCJ, 2143, the Nigerian court held that the defendant owed his fellow road users the duty of care. For that reason, the plaintiff succeeded in his claim for damages on grounds of breach of duty owed to him by the defendant. This was however distinguished in Topp v London Country Bus [1993] 1 ...Download file to see next pagesRead More
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