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Negligence and tort related case studies
Negligence and tort related case studies
Negligence and tort related case studies
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1. Introduction There are four elements in the tort of negligence: duty of care, breach of duty, proximate cause and harm or damage that is attributed to the breach of duty. Negligence is the breach of duty to take care, wherein breach is considered on the basis of the standard of care required. Defendants cannot take an excuse in negligence cases that they did not have the requisite skill or knowledge which would have allowed them to take more care, as also explained in the maxim imperitia non exculpatur. The question that arises is that what should be the standard of care that is expected from the defendants. In the majority of cases, the answer to the question is the objective standard of care because the courts usually apply the objective …show more content…
In this case, the defendant was held to be not liable for negligence because any other reasonable race track operator would have acted in the same way. Similarly, in Glasgow Corporation v Muir, the defendant was held to be not liable for negligence because he had acted as a reasonable person would have by allowing the claimants entry into his tea room when the weather was bad …show more content…
Thus, the objective standard of care will vary from case to case. There are cases where the standard of care and skill is higher because the defendant is a member of a particular profession or holds out as having certain skill sets. However, in such cases also, the court uses the objective test for standard of care, where the court applies a standard of care that can be expected from a prudent member of the same profession or a prudent person having the same skill sets as the defendant. The next set of cases will demonstrate how common law has managed to apply the objective standard of care over varying circumstances or kinds of defendants in order to ensure that the standard of care is not a technical one but something that can be flexibly moulded to fit different situations. In cases of medical negligence, the courts have applied the objective standard of care to hold the defendant liable for negligence if his conduct or actions fall short of the standard of care that would be taken by reasonable or prudent members of the profession. In Bolam v Friern Hospital Management Committee, the court laid down what is called the 'Bolam test'. This is applied to defendants who are professionals and the purpose of the test is to apply the objective standard of care to the defendant based on the reasonable
The first component of the four D’s of negligence is duty. The dentist owed a duty of care to every one of his patients. Duty of care is a legal obligation a health care worker, in this case, the dentist, owes to their patient and, at times,...
The tort involved in this case is that of negligence, which is defined as the breach of an individual’s duty to take reasonable care in situations where damage has occurred to another person or organisation (Legal Services Commission, 2013).
In certain circumstances, when plaintiff succeeds in establishing duty of care, breach of duty and resulting damage, defendant may attempt to shelter behind several defences to avoid liability. Two major defences to negligence are Contributory Negligence and Assumption of Risk (Volenti Non Fit Injuria).
The practitioners conduct is to be judged against the state of professional knowledge at the time of the matter concerned. The acceptable standard of care is assessed by the general practice of doctors in England and Wales and is usually defined by what would be a reasonable standard of care. However there are sometimes difficulties when assessing this as there are sometimes differences of opinions on the matter. This is known as the ‘Bolam test’. An action will not amount to negligence unless it is carried out without ordinary care.
The standard of care is an anthropomorphic concept of justice. It is the degree of care a prudent person would carry out in a specific circumstance. As a general test the standard of care required is an objective one, which is of a ‘reasonable person’. The reasonable person deals with the question: What would a reasonable person have foreseen in the particular circumstance? Therefore the defendant is required to take as much care as a reasonable person would have taken in his position. However, in circumstances to deal with intentional tort, the court may apply subjective test.
To be able to successfully discuss the legal requirements needed to succeed in a negligence action we first to need to understand what is needed for something to be considered negligent and what you aim to succeed in trying to sue for it. For a successful negligence claim to be made there needs to be four elements present: duty of care, breach of a duty of care, causation, and damage. When suing for negligence you are usually seeking for compensation this can come in two forms. Firstly, it could be quantifiable loss (earnings) or unquantifiable loss (ability to play sport). In this essay, I will discuss the four elements needed and identify if they link to our scenario above.
Negligence is conduct that creates risk of harm to someone, it may cause another person injury. To succeed in a negligence claim, the plaintiff must prove negligence the defendant owed as a duty toward the plaintiff. The plaintiff must show how the defendant failed to act in a reasonable way, or breached their duty and how the defendant's breach is the cause of someone’s injuries (n.d., 2016).
There are several issues which arise from this case of the Hill Top Café which owned by Anneke. For the first circumstance, a general issue which concerning the tort of negligence is considered. The problem is that has Anneke been negligence. Then, in the subsequent situation, it includes the general issues about vicarious liability and negligence, and the particular issue of claims for physical injuries. Therefore, does Anneke have a vicarious liability should be concerned and has Ivan been negligence for the lamp post and Steve’s motorbike. Meanwhile, who has the responsibility to compensate the injury of Steve?
Negligence is said to be a failure of a responsible person who is in charge to guarantee the responsibility of care is carried out which can be resulted is another person’s injuries or damages. The word tort simply means wrong which defines liability for cost related to injuries or damages or financial loss or property damages which can be due to the lack of carelessness of the defendant towards the plaintiff. In usual cases the defendant has to be proved that he/she has acted intentionally and there should be an actual damage or injury due to their action. In order to prove that the defendant has liability towards the plaintiff, the three main elements in the “Tort of Negligence” should be presented: duty of care, breach of duty and damages that have been done.
1. a. When a person is injured in a careless way and causes another person to be injured, under the principle of "negligence", the careless person will be liable for the injury. The basis for this assessment and identification of the fault is in most cases involving accident or injury disputes, in informal settlement negotiations, and through the trial of a personal injury lawsuit.
Contributory negligence is a partial legal defence to negligence case due to the Plaintiff failing to take reasonable care for their own safety and in-turn contributed to the accident, thus the damages reduced so the Defendant only has to pay what is fair and reasonable. Pursuant to the Civil Liability and Other Legislation Amendment Act 2010 (Qld) (CLOLA), Section 48 of the CLA now has a presumption of contributory negligence and applies
Consider the adequacy of the ‘but-for’ test for the purpose of establishing proof of factual causation in negligence.
The Tort of Negligence is a legal wrong that is if one has suffered at the hands of another who fails to take “reasonable” duty of care to avoid foreseeable risks. This was first made legislation after a snail was discovered at the bottom of one’s bottle. Ms May Donoghue was given a bottle of ginger beer, which had purchased for her
The primary judge quoted the above in Carrier v Bonham [2001] QCA 234, [2002] 1 QdR 474, p478 [6]. The primary judge also took into account the rule established in Bunyan v Jordan. The rule in that case being that to be liable in negligence, there must be an intention to inflict harm. The
Tort liability is basically fault based liability which here means negligence. The pre-condition of foreseeability of harm is pre-condition of liability under the case “Rylands vs