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Law of Torts - Coursework Example

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Law of Torts By Course Instructor Institution 26, Mar 2013 Introduction Duty of care is a key element, and indeed the foundation of the tort of negligence. The modern concept of the duty of care has its roots in the case of Donoghue V Stevenson.1 In this case, Lord Atkins established that to prove the tort of negligence, the claimant has to cross 3 hurdles, that is, establish that the defendant owed him a duty of care both in law and fact, that the claimant breached the duty of care, and that as result of the breach, the claimant suffered a damage that was caused by the defendants breach (causation)…
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Law of Torts
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Download file to see previous pages To achieve the purpose, this paper shall first trace the test that have been developed overtime through the decisions of the courts, examine their shortcomings, and finally conclude on the extent to which it is possible to establish a single duty of care. Before the plaintiff proceeds any further to elicit evidence of the carelessness, and damage resulting from the conduct of the defendant, the defendant must establish that the defendant owed him a duty of care. But how does one establish that they are owed a duty of care? The traditional approach has established the duty of care to exist in certain special relationships, such as doctor/patient, lawyer/client and manufacturer/consumer. However, for certain fresh cases, test must be applied to establish whether the duty of care exists. The court has over time developed a rich jurisprudence over the tests that are applicable to establish a common law duty of care. Several tests have been developed to apply to particular set of facts. ...
But to what extent is it possible to formulate a single test? Lord Bridge, in Caparo V Dickman2, recognized that traditionally, “law finds the existence of duty in different specific situations each exhibiting its own particular characteristics. In this way, the law has identified a wide variety of duty situations, all falling within the ambit of the tort of negligence, but sufficiently distinct to require separate definitions of all essential ingredients by which the existence of the duty is to be recognized.” Duty of Care Tests: How it Has Developed over Time Prior to Donoghue V Stevenson, duty of care, to find negligence was normally on a case by case basis. It was normally owed in only specific and defined circumstances, such as those established under a contract. The modern quest for a single general principle that can be applied to all circumstances to determine the existence of a duty of care can be traced to Brett, M.R, decision in Heaven V. Pender,3 where he stated that, “whenever a person is by circumstance, placed in such a position with regards to another, that every one of ordinary sense, who did think, at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid the danger.” However, other judges did not concur with this decision fully. It was later extended by Lord Atkins in the Donoghue case. He stated that the above decision was too wide. Lord Atkin held that for a new duty to arise, it has to have a pedigree to a scenario that had already been examined and classified by the court, stating that, “when a new point emerges, one should ask not whether it is ...Download file to see next pagesRead More
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