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Discuss the extent to which the concept of duty of care in negligence has developed in a manner so that both the claimant and de - Essay Example

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An Examination of the Role of the concept of Duty of Care in defining Tort Damages Introduction Tort is a branch of civil law that deals with differences between individuals. Winfield states that “tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages”1…
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Download file to see previous pages This means that tort is about a duty of care which one owed to another but failed to discharge accordingly. This is widely described in most books as negligence. This paper would examine the concept of negligence and how it affects the development of the concept of duty of care in order to ensure the fair treatment of both claimant and defendant in court cases. Concept of Neighbour In the landmark case of Donoghue V Stevenson3, the neighbourhood principle was developed. In the case, Mrs.Donoghue bought a bottle of ginger beer which was manufactured by Mr. Stevenson. After drinking it, she found that there was a snail in the bottle. Mrs. Donoghue fell ill and she sued Mr. Stevenson. The House of Lords sat on the case and held that Mr. Stevenson, being the manufacturer of the drink owed Mrs. Donoghue a duty of care. This is because it was reasonably foreseeable that failure to ensure product safety would cause another person to suffer and go through undue hardship. On the basis of this case, the concept of neighbourhood was established. Lord Atkins stated that in every action and inaction, a person must examine its implications and potentials of harming another individual who might be affected by them. Based on this, the concept of who a person's neighbour is was defined and established in law. Through the Donoghue V Stevenson case, it is established that a person owes another person a duty of care, once the neighbourhood relationship exists. This sets the parameters for the examination of tort cases. Duty of Care The neighbourhood test in the 1932 case of Donoghue V Stevenson has been modified to the basis of proximity. Proximity establishes that there was a close and sufficient relationship that made a person suffer some kind of injury from the action of another who was close enough to wield a duty of care to avoid that injury. In Caparo V Dickman4, a three fold test was developed to ascertain whether it is fair and just to impose a duty of care on a person for a given action in tort. These are: 1. The harm of the action in question must be reasonably foreseeable as in the case of Donoghue V Stevenson 2. The parties involved in the case must have a close relationship of proximity. 3. The duty of care imposed upon them must be fair, just and reasonable. Breach of Duty Once the three elements of a case are established, the court would need to establish that the duty of care was breached. And this breach is tantamount to negligence. Negligence is the failure to take reasonable care where a duty of care exists in a relationship5. Thus, the breach of a duty of care or negligence gives rise to a tortious liability and it leads to a given legal case. The breach of duty is failure to show a degree of care that a reasonable person ought to show in the same circumstances6. In other words, the breach of a duty of care creates an objective test which allows the court to measure the extent of a given act in tort. This is because, a reasonable person must show a certain level of basic consent for his actions. Without that, the real parameters of a case of tort cannot be defined. Thus, the test for reasonableness is important and fundamental in establishing the extent of negligence and the extent of failure. In Phillips V William Whiteley7 a woman suffered an infection as a result of her ear being pierced by a jeweller. The woman argued ...Download file to see next pages Read More
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