Proximity Between the Defendant and Plaintiff - Literature review Example

Running Head: Legal Frameworks in the Built Environment Legal Frameworks in the Built Environment: Nuisance and Tresspass of the writer] [Name of the institution] Legal Frameworks in the Built Environment: Nuisance and Tresspass Negligence is a part f that branch f civil law known as tort law, in other words, negligence is the doing f something which reasonable person would not do or the failure to do something that a reasonable person would do, which inadvertently inflicts harm (Moore,2005,p.20). Negligence can be defined as protection f person, property and economic interest from damage caused by another person failure to take reasonable care (Latmier, P., 2004. p.196) in which legal remedies are awarded for the victims in regret to the case. Tort law must be differenced from the law f contract, as a tort f law defends damages caused to one self or relatives and their property, whilst law f contracts involves the rights f the parties engaged within the establish contract. In addition negligence is a legal cause f damage if it directly or contributes to produce such damage, so it is reasonably to say that the loss, injury or damage would not have happened if there is no negligence act. There are three essentials involved in determining negligence case. Duty f care, Standard f care and sufficient connection in law. A plaintiff must successfully prove that the defend owed all these essential to them, in order to claim legal damage or remedies. If one more f these essential are missing, the claim for negligence will be unsuccessful. Duty f care means a duty to take reasonable care or exercise reasonable skill. (Latmier, P.2004, p.197). Basically court observes recognized duties f care between professionals and clients, manufacture to consumer, schools to students, employers to employees. Duty f care is the legal requirement that the defendant must stick to a standard f conduct in protection others from unreasonable risk f injury or loss. To be liable for negligence in relation to another person, a person must owe a legal duty f care to that another person, its mean if there is no duty f care owe by the defendant, the plaintiff claim must fail. There are two types f duty f care, duty f care in negligence act (physical injury or damage) and duty f care in negligence advice, according to the case, it can be seen that it is a negligence act f physical injury to plaintiff, as result as this report will be discussing about duty f care in negligence act (physical injury or damage). To prove that the defendant owe a duty f care is by doing the two test that Lord Atkin had established. And those tests are doctrine reasonable foresee ability and proximity. These two fundamental were devised and stated by Lord Atkin when dealing with the Donoghue v Stevenson case in 1932, and called these elements put together, "the neighbor test". Both these two elements are required in establishing a duty f care was owed. Reasonable foresee ability is whether a reasonable person, in the position f the defendant, have foreseen the like hood f injury to the plaintiff arising out f the defendant's behaviour (Moore, 2005, p.22). From this case that we had seen Mr. Chuck is ordered by his boss to work on a metal frame at manufacture, there is a big chance that the frame which weighing half tone supported by a heavy chain will snap one day and injure the employees who work near the frame, on the other hand the chain breakage is due to the failure f the employer to properly maintain the chain. In addition it does not required the exact nature f the loss or injury been foreseen, just the possibility injury f the same common nature as that suffered. Latmier (2002, p.204) notes that, the proximity requirement is introduces by the law to limit the test f reasonable foreseeability. Proximity between the defendant and plantiff needs to be established before a duty f care can arise. Proximity is defined as, we the proximity f the injured plaintiff such that the defended ought to have had him/her in mind when doing the alleged negligence act. As dictated in Jaensch v Coffey (1984), proximity need not be physical or geographical. According to this case the defendant action that causes the plaintiff suffered and kept him away from his job. The defend knew that the place is no safety for Mr. Chuck therefore defendant also knew that anything could happened if the employer who maintain the chain make a mistake or not provide a safe system f work. Lord Atkin also stated that the reasonable foreseeability and proximity must be answered in the affirmative in another word meaning yes for a duty to be owed. If the answer is no to either both, then the defendant doesn't owe a duty f care and can't be liable in a negligence act (Moore,2005,p.22). Negligence is a conduct which held below the standard commanded to protect individuals against inadvertent harm. This standard is measured by the reasonable test, which is the reaction f a reasonable person compare to what the defendant did in the circumstance. Did the defendant breach the required standard f care An objective test is 'what could be a reasonable person do under the same situation faced by the defendant at that particular time' A reasonable person is defined as someone who has an average intelligence, minimum knowledge and less skill in the relevant circumstance except infants and those with physical disabilities. The defendant is in breach if the theoretical reasonable person would have foreseen the possibility f harm and taken steps (Gillies,2004, p.85). There are five guidelines to prove a breach f standard f care developed by the courts, which could be relevant and useful in determining the appropriate standard f care; probability f harm, seriousness f possible injury, costs and opportunities f reducing or avoiding the risk, value f the defendant's conduct and conformity with established standards. Where the risk is small and the circumstances are such that a reasonable person would think it is right to neglect it, the defendant maybe justified in disregarding such a foreseeable risk f injury (Gibson,2005,p.102). As Bolton V Stone (1951) Cricket ball, is one f the cases that discussed about the probability f harm. From the statement above, it can be shown that there is no probability f harm, why Because the change f an employer injured are small and therefore the defendant didn't have to show great amount f care to Mr. Chuck. The more serious the likely injury, the more significant the risk and the greater precautions the defendant must take (Terry,2003,p.182). a case that would suit this is Paris V Stepney Borough Council (1951) one-eyed mechanic. As stated by terry, the answer would be yes, why Because f the defendant's fault and act that the plaintiff had to suffer. If the boss didn't give the order to Mr. Chuck to work on metal frame, Mr. Chuck wouldn't have been badly injured as a result. If the cost f eliminating a risk is low and will cause little or no inconvenience, a defendant's failure to take such steps will not be justifiable (Gibson,2005,p.103). one f the relating cases would be Latmier V AEC Ltd (1953) slippery floor, as the cases above and as the statement by Gibson, I can be describe that to avoid the risk is small, why Because it is the order from boss, Mr. Chuck had a change to take it or talk to boss about the risk if Mr. Chuck will be work on that place. The actual is big because he had a badly injured as result which cause by the breakage f heavy chain and therefore more likely to be a branch on negligence. The less social or economic value f the defendant's conduct, the greater the likelihood f a branch in the standard f care (Moore,2005,p.27). This statement is related to an old case called Daborn V Bath Tramways (1946) left hand drive ambulance. The appropriate answer would be no, why Because there is a small probability that such things would occur and it's out f expectations f the defendant thought also the defendant would be not realized that there would be out f control and become a big accident as result in Mr. Chuck. According to Moore (2005,.p.27) "conformity with established standards in any trade or profession is important evidence that reasonable care exercised". From what had been discussed, it can be seen that the defendant was following the standards, for example, the defendant have the employee who maintain the chain. Is there sufficient connection in law between the defendant conduct and the damage suffered by the plaintiff To satisfy the sufficient connection in law, the plaintiff must show that the branch actually caused the injury suffered, which was f a type that was reasonable foreseeable consequence f that branch (Moore,2005,p.28). There are two components that come under sufficient connection in law, those are causation and remoteness. Did the defendant conduct cause the plaintiff injury or loss (Moore,2005,p.28). As we have seen before, it's likely the answer to be yes, why Because this is where the test apply involves asking whether the injured suffered by the plaintiff would have been suffered "but for" the defendant negligence. According to Fleming (1998, p.128), "not only must there be damage (injury); it must have been caused by the defendant's fault. There is a reasonable connection between the harm threatened and the harm done". In other words, the plaintiff must prove that the defendant's negligent act has actually caused the relevant damage. According to Peters (2004, p.248), "thus if the defendant wasn't negligent and the plaintiff would have suffered the injuries they did anyhow, and then the defendant negligence didn't cause the injuries to the plaintiff. This is known as the 'but for' test. The 'but for' test isn't the exclusive test for causation, as courts often take a 'common sense' approach as well". This case would be related to an old case which is Corky V Kirby Maclean (1952) epilepsy. As a conclusion to causation, it can be proven that the defendant did act and caused loss or injured to plaintiff and there are no 'but for' test applied. If the defendant's conduct did cause damage (injury or loss) to the plaintiff, is the defendant liable for the damage (compensation) suffers by the plaintiff resulting from his negligent conduct (Moore,2005,p.30). The most suitable case for remoteness is wagon mound no.1 (1961) burnt wharf. This second requirement for the recovery f the damages is a policy consideration imposed by the laws which protect a defendant from liability for damage which aren't too remote. The objective f remoteness is would a reasonable person have foreseen the damage As we have discussed before, yes the defendant does liable for all the damage, which defend had conducted. Why the defendant liable for all the damages Well as we have knew before, that the chain snaps whilst chuck is underneath the frame however the defendant knew what was going on with the accident but the defendant still conducted the act. In addition, if personal injury is the type f damage reasonably foreseeable, the defendant is then liable for all kind f injury suffered, as egg shall skull rule states: "you must take your victim as you find him". Due to the reason that injury is foreseeable after the accident the manufacture is liable for the serious injury suffered by Mr. Chuck. Damages are the sum f money awarded for the loss or damage suffered by the plaintiff and this is where the 'once and for all' rule comes. It said that the award f damages is lump sum payment, and can't be paid in the form f an indexed pension (Moore,2005,p.32). On this case Mr. chuck experienced f sever pain and loss f earning capacity, he can claim for both categories as an award f damages, however the plaintiff can only claim damages once and for all his loss for the past, present and future. Nether the loss does not turn out to be greater nor less than expected at the time f trial, would it not affect the award to be increase or decrease. Losses for which damages are awarded in negligence fall into two categories. Pecuniary loss and non pecuniary loss. References Moore, B (2005). Legal studies lecture notes: third semester 2005. Perth: AIT. Latmier, P. (2004). Australian business law 24th edition, North Ryde:CCH3.Fleming, J. (1998). The law f torts 9th edition, Sydney: Law book. Gillies, P. (2004). Business law 12th edition. Canberra. Federation Press. Gibson, A. (2005). Understanding business law 2nd edition. China. Pearson. Terry, A. (2005). Business society and the law. Singapore. Thomson7.Peters, M. (2004). Law f business. Sydney. Law press Asia. Read More