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Tort Law - Assignment Example

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Duty of Care in Negligence Introduction Duty of care constitutes the first of the three chief elements of negligence. This is determined by proximity, foreseeability, and policy. In general, duty of care results from positive acts, which damage property or cause physical injury…
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Download file to see previous pages However, a loss should have taken place for the injured party, due to the breach of the duty of care. This makes it necessary for claimants to prove that the defendant had owed them a duty of care.2 Before the year 1932, liability in negligence was restricted to finding a duty of care. This was done on a case by case basis and in situations where there had been a pre – existing relationship between the parties. The decision in Donoghue v Stevenson changed this situation. 3 In this case, the first general rule for establishing a duty of care was established. With this decision the contemporary law of negligence and the neighbour test were formulated. The House of Lords held that Donoghue could claim in tort, even though the contract was between her friend and the seller. With this ruling, manufacturers were placed under a duty of care to consumers.4 The decision in Donoghue v Stevenson, developed the principle of duty of care. The importance of this decision made it a legal principle. It related to the concept of duty of care, and formed the basis for the product liability of manufacturers. In this case, the plaintiff underwent distress on seeing the dead snail in her ginger beer. Afterwards, she fell ill, and the House of Lords ruled that the defendant owed her a duty of care. ...
6 As such, duty of care is an important element of tort cases. In cases of negligence, causation provides connection between breach of duty and the resultant damage. Many tests have been formed, in order to find causation. These tests, were mainly aimed at analysing an event that can be categorised as a breach of duty and that can be claimed as the cause of the loss sustained by the claimant.7 Consequently, a tort of negligence takes place, when there is breach of a duty of care, which causes damage to the claimant. In Caparo Industries plc v Dickman,8 a three stage test was formulated. First there should have been a foreseeable harm to the claimant. Second, the claimant and the defendant should have been sufficiently close. Third, it should be reasonable and just to impose a duty of care. As such, there are two requirements with regard to the neighbour test. The first of these relates to a reasonable anticipation of harm. The second requirement is that of proximity. The rule established in the Caparo case has been popular with the courts. This can be seen in cases where a duty of care is owed to third parties in the tort of negligence. The facts of the Caparo case are detailed below. 9 In Caparo Industries plc v Dickman, the books of a public company had been audited by a firm of accountants. Afterwards, this firm of accountants advised the plaintiff, about the financial status of this public company. The plaintiff relied on this advice and invested in the company. This investment resulted in considerable loss to the plaintiff. As a result, the plaintiff claimed damages from the firm of accountants. The House of Lords, ruled that there was no liability. There was insufficient proximity between these ...Download file to see next pagesRead More
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