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Torts law problem - Essay Example

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Name 25 July 2011 First Problem Briefly stating the facts, Rhett, a land developer was interested in purchasing a land in the Outback, in New South Wales. Before purchasing the land from Melanie, he wanted to conduct a background check on the piece of land he was buying…
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Download file to see previous pages Based on this certificate, Rhett purchased the land. Later on when Rhett submitted his plans for construction of a residential subdivision, the Council rejected the proposal, on account of flood risk. Due to the refusal, and no other recourse left with Rhett, he had to sell his land to a local farmer at a substantial loss. Now from the facts above, it is quite clear that, there was injustice meted out to Rhett. Now, the problem that Rhett is facing has a solution in Law of Torts. Law of Torts is the field of law which deals civil harms that may be caused to a person. The concept of negligence is integral to the Law of Torts. The definition of negligence under tort law states that, “the breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant” [L.B. Curzon, Dictionary of Law]. Another popular definition states that, “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” [Per Alderson B., Blyth v Birmingham Waterworks Co. (1856)]. From Lord Curzon’s definition, we understand that there are three important aspects to prove negligence, one being ‘legal duty to take care’, ‘breach of duty of care’ and the third one being ‘damages’. We will first understand the three ingredients of negligence, and then go on to observe whether the problem at hand actually amounts to negligence, and if so, what the recourse that Rhett has is in this given scenario. Now the duty of care essentially means that, every person owes a duty not to harm their neighbour, and reasonably foresee, whether there action may cause to the person. This principle was laid down in the landmark judgement of Donahue v Stevenson. Further in Capro v. Dickman, their primary components of Duty of Care were laid down. The judgement said that Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. Now as goes for the ‘first component’, we have to determine whether the Council clerk could reasonably foresee the harm he was about to cause Rhett. In this scenario, it can be reasonably assumed that the clerk knew that the whole and sole responsibility of running the background check on the said property was on him. He was also aware that, if there was any irregularity in the records, it was his duty to point out the Scarlette. Failure to do so, would result in great harm to the buyer of the land, as the buyer was solely depending upon the background check of the Council. Therefore, it is reasonable to assume that, the clerk was in a position to ascertain the kind of harm he would cause if he did not take the proper steps to give the proper background check on the aforesaid land. So we are sure, that the first ground of Duty of Care exists. Moving on to the ‘second component’, i.e. the relationship of proximity between the plaintiff and the defendant. There was a definite relationship between Rhett and the Council clerk. Rhett had approached the Council clerk, to provide him with the background check on the said land. Therefore, Rhett was expecting the clerk to carry out his duties rightfully and perform the check for him. It was the clerk’ ...Download file to see next pagesRead More
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