Law Case

Published: 2021-06-29 06:46:11
essay essay

Category: Social Issues

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When it comes to tort the courts are adinmant about deciphering whether a duty of care exists.The elements of negligence are duty of care; breach of that duty of care; causation, that is a causal link between the individual's injury or property damage; and actual damage either to a person or to property. Each of these elements are essential to a successful claim under the law of tort, however the first step is to consider whether there is a duty of care between the injured person and the person whose actions have caused it. There are two branches of duty of care, those duties recognised by law and those inferred by the circumstances. In cases where no duty of care has been imposed by law the test of the foreseeable claimant is used; whereby the duty is not owed to the world at large, but only to an individual within the scope of the risk created, that is to the foreseeable victim. A duty of care can only be owed whenever in the circumstances it is foreseeable, that if the defendant does not exercise due care the plaintiff will be harmed. This foreseeable test was laid down by Lord Atkin in the case of Donoughe v. Stevenson and it is known as the neighbor principle, which is you should love your neighbor. The rule that you must love your neighbor, receives a restrictive you must take reasonable care to avoid act or omissions, which you can reasonably foresee, is likely to injure your neighbor. A person should take reasonable care to avoid acts or omissions, which you can reasonably foresee. Not every and any person owes a duty of care. There is a number of common situations in which it is well established that a duty of care exists for example the occupier of premises owes a duty of care to lawful visitors to ensure that the premises are reasonably safe; the employer of a workman in the factory owes a duty of care to provide adequate equipment and a safe system of working; a bailee of goods owes a duty to the bailor to take care of the goods entrusted to him; a manufacturer of goods owes a duty of care to consumers to ensure that the goods are free from harmful defects and the driver of a vehicle on the road owes a duty of care to other road users, pedestrians and occupiers of premises abutting the highway to drive carefully.
In the case of Anns v. Merton, Lord Wilberforce concluded that duty effectively comprised two stages. The first stage, derived from the neighbor principle, was a relationship of proximity or neighborhood based on foreseability of harm. The second was the consideration of policy factors, which might negative, reduce or limit the scope of the duty, or the class of persons to whom it was owed, or the damages to which it might give rise. The two-stage test led to expansionary decisions. This was partly because the notion of duty based on foreseeability without overt consideration of precedents at the first stage was inherently suited to developing, rather than restricting, the law. But it was also due to the

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