The document discusses the duty of care in negligence cases. It explains that there are four key considerations for establishing a duty of care: (1) duty of care, (2) breach of duty of care, (3) causation, and (4) loss or injury. It then focuses on duty of care, outlining the traditional categories where a duty of care has been established (such as between doctors/patients). It also discusses novel cases and explains the three part test of foresight, proximity, and fairness used to determine if a duty of care exists. Specific cases are referenced to illustrate various principles around establishing duty of care.
Law of negligence is one of the most important branch of tort law, deals with the various aspects of negligence between the professional's and the layman.
Law of negligence is one of the most important branch of tort law, deals with the various aspects of negligence between the professional's and the layman.
Occupiers' Liability - For Revision Purpose OnlyAzrin Hafiz
one of the chapters in LAW 498 - Law of Torts II
prepared by:
Azrin Hafiz
Bachelor of Legal Studies (Hons) student
Faculty of Law
Universiti Teknology MARA (MARA Universiti of Technology), Malaysia
Occupiers' Liability - For Revision Purpose OnlyAzrin Hafiz
one of the chapters in LAW 498 - Law of Torts II
prepared by:
Azrin Hafiz
Bachelor of Legal Studies (Hons) student
Faculty of Law
Universiti Teknology MARA (MARA Universiti of Technology), Malaysia
Multiple-Choice 2 points each.Pick the best answer; put answers .docxadelaidefarmer322
Multiple-Choice 2 points each.
Pick the best answer; put answers on answer sheet.
1)
Danny and Marion Klein were injured when an aerial shell at a public fireworks exhibit went astray and exploded near them. They sued Pyrodyne Corp., the pyrotechnic company that was hired to set up and discharged the fireworks, alleging, among other things, that the company should be strictly liable for damages caused by the fireworks display. Will the court agree with the Kleins?
a.
Yes, because any time a person ignites aerial shells with the intention of sending them aloft to explode in the presence of large crowds knows that injuries can occur.
b.
Yes, because no matter how much care pyro technicians exercise they cannot eliminate the high risk inherent in setting off powerful explosives such as fireworks near crowds.
c.
No, because anyone who attends a fireworks display assumes the risk for the potential of injury that may occur.
d.
No, because all six of the factors needed to prove strict liability was not present.
2)
Blue Cross and Blue Shield insurance companies (the Blues) provide 68 million Americans with health-care financing. The Blues have paid billions of dollars for care attributable to illnesses related to tobacco use. In an attempt to recover some of this amount, the Blues filed a suit in federal district court against tobacco companies and others, alleging fraudulent misrepresentation, and negligence among other things. The Blues claimed that beginning in 1953, the defendants conspired to addict millions of Americans, including members of Blue Cross Plans, to cigarettes and other tobacco products. The conspiracy involved misrepresentation about the safety of nicotine and its addictive properties, marketing efforts targeting children, and agreements not to produce or market safer cigarettes. The defendants’ success caused lung, throat, and other cancers, as well as heart disease, stroke, emphysema, and other illnesses. The defendants asked the court to dismiss the case on the grounds that the plaintiffs did not have the standing to sue. Do the Blues have standing to sue?
a.
No, because the any injury to the plaintiffs was indirect and too remote to permit them to recover.
b.
No, because Blue’s injuries would be derivative of the smokers personal injuries and thus be impossible to separate from the smokers injuries.
c.
Yes, because the injuries and damages asked for from Blue were different than those suffered by smokers, in that they are asking to recover for monies expended in medical claims, and thus could be the basis of a case for the court to determine.
d.
Yes, because Blues argue that the cigarette industry involved them in a conspiracy to addict smokers and thus there injuries were foreseeable and directly related attributable to the defendants behavior.
3)
The First Amendment protects Marco and others from
a.
Dissemination of obscene materials and speech that harms their good reputations or violates sta.
Attending a job Interview for B1 and B2 Englsih learnersErika906060
It is a sample of an interview for a business english class for pre-intermediate and intermediate english students with emphasis on the speking ability.
Premium MEAN Stack Development Solutions for Modern BusinessesSynapseIndia
Stay ahead of the curve with our premium MEAN Stack Development Solutions. Our expert developers utilize MongoDB, Express.js, AngularJS, and Node.js to create modern and responsive web applications. Trust us for cutting-edge solutions that drive your business growth and success.
Know more: https://www.synapseindia.com/technology/mean-stack-development-company.html
"𝑩𝑬𝑮𝑼𝑵 𝑾𝑰𝑻𝑯 𝑻𝑱 𝑰𝑺 𝑯𝑨𝑳𝑭 𝑫𝑶𝑵𝑬"
𝐓𝐉 𝐂𝐨𝐦𝐬 (𝐓𝐉 𝐂𝐨𝐦𝐦𝐮𝐧𝐢𝐜𝐚𝐭𝐢𝐨𝐧𝐬) is a professional event agency that includes experts in the event-organizing market in Vietnam, Korea, and ASEAN countries. We provide unlimited types of events from Music concerts, Fan meetings, and Culture festivals to Corporate events, Internal company events, Golf tournaments, MICE events, and Exhibitions.
𝐓𝐉 𝐂𝐨𝐦𝐬 provides unlimited package services including such as Event organizing, Event planning, Event production, Manpower, PR marketing, Design 2D/3D, VIP protocols, Interpreter agency, etc.
Sports events - Golf competitions/billiards competitions/company sports events: dynamic and challenging
⭐ 𝐅𝐞𝐚𝐭𝐮𝐫𝐞𝐝 𝐩𝐫𝐨𝐣𝐞𝐜𝐭𝐬:
➢ 2024 BAEKHYUN [Lonsdaleite] IN HO CHI MINH
➢ SUPER JUNIOR-L.S.S. THE SHOW : Th3ee Guys in HO CHI MINH
➢FreenBecky 1st Fan Meeting in Vietnam
➢CHILDREN ART EXHIBITION 2024: BEYOND BARRIERS
➢ WOW K-Music Festival 2023
➢ Winner [CROSS] Tour in HCM
➢ Super Show 9 in HCM with Super Junior
➢ HCMC - Gyeongsangbuk-do Culture and Tourism Festival
➢ Korean Vietnam Partnership - Fair with LG
➢ Korean President visits Samsung Electronics R&D Center
➢ Vietnam Food Expo with Lotte Wellfood
"𝐄𝐯𝐞𝐫𝐲 𝐞𝐯𝐞𝐧𝐭 𝐢𝐬 𝐚 𝐬𝐭𝐨𝐫𝐲, 𝐚 𝐬𝐩𝐞𝐜𝐢𝐚𝐥 𝐣𝐨𝐮𝐫𝐧𝐞𝐲. 𝐖𝐞 𝐚𝐥𝐰𝐚𝐲𝐬 𝐛𝐞𝐥𝐢𝐞𝐯𝐞 𝐭𝐡𝐚𝐭 𝐬𝐡𝐨𝐫𝐭𝐥𝐲 𝐲𝐨𝐮 𝐰𝐢𝐥𝐥 𝐛𝐞 𝐚 𝐩𝐚𝐫𝐭 𝐨𝐟 𝐨𝐮𝐫 𝐬𝐭𝐨𝐫𝐢𝐞𝐬."
Remote sensing and monitoring are changing the mining industry for the better. These are providing innovative solutions to long-standing challenges. Those related to exploration, extraction, and overall environmental management by mining technology companies Odisha. These technologies make use of satellite imaging, aerial photography and sensors to collect data that might be inaccessible or from hazardous locations. With the use of this technology, mining operations are becoming increasingly efficient. Let us gain more insight into the key aspects associated with remote sensing and monitoring when it comes to mining.
Memorandum Of Association Constitution of Company.pptseri bangash
www.seribangash.com
A Memorandum of Association (MOA) is a legal document that outlines the fundamental principles and objectives upon which a company operates. It serves as the company's charter or constitution and defines the scope of its activities. Here's a detailed note on the MOA:
Contents of Memorandum of Association:
Name Clause: This clause states the name of the company, which should end with words like "Limited" or "Ltd." for a public limited company and "Private Limited" or "Pvt. Ltd." for a private limited company.
https://seribangash.com/article-of-association-is-legal-doc-of-company/
Registered Office Clause: It specifies the location where the company's registered office is situated. This office is where all official communications and notices are sent.
Objective Clause: This clause delineates the main objectives for which the company is formed. It's important to define these objectives clearly, as the company cannot undertake activities beyond those mentioned in this clause.
www.seribangash.com
Liability Clause: It outlines the extent of liability of the company's members. In the case of companies limited by shares, the liability of members is limited to the amount unpaid on their shares. For companies limited by guarantee, members' liability is limited to the amount they undertake to contribute if the company is wound up.
https://seribangash.com/promotors-is-person-conceived-formation-company/
Capital Clause: This clause specifies the authorized capital of the company, i.e., the maximum amount of share capital the company is authorized to issue. It also mentions the division of this capital into shares and their respective nominal value.
Association Clause: It simply states that the subscribers wish to form a company and agree to become members of it, in accordance with the terms of the MOA.
Importance of Memorandum of Association:
Legal Requirement: The MOA is a legal requirement for the formation of a company. It must be filed with the Registrar of Companies during the incorporation process.
Constitutional Document: It serves as the company's constitutional document, defining its scope, powers, and limitations.
Protection of Members: It protects the interests of the company's members by clearly defining the objectives and limiting their liability.
External Communication: It provides clarity to external parties, such as investors, creditors, and regulatory authorities, regarding the company's objectives and powers.
https://seribangash.com/difference-public-and-private-company-law/
Binding Authority: The company and its members are bound by the provisions of the MOA. Any action taken beyond its scope may be considered ultra vires (beyond the powers) of the company and therefore void.
Amendment of MOA:
While the MOA lays down the company's fundamental principles, it is not entirely immutable. It can be amended, but only under specific circumstances and in compliance with legal procedures. Amendments typically require shareholder
Affordable Stationery Printing Services in Jaipur | Navpack n PrintNavpack & Print
Looking for professional printing services in Jaipur? Navpack n Print offers high-quality and affordable stationery printing for all your business needs. Stand out with custom stationery designs and fast turnaround times. Contact us today for a quote!
Improving profitability for small businessBen Wann
In this comprehensive presentation, we will explore strategies and practical tips for enhancing profitability in small businesses. Tailored to meet the unique challenges faced by small enterprises, this session covers various aspects that directly impact the bottom line. Attendees will learn how to optimize operational efficiency, manage expenses, and increase revenue through innovative marketing and customer engagement techniques.
Personal Brand Statement:
As an Army veteran dedicated to lifelong learning, I bring a disciplined, strategic mindset to my pursuits. I am constantly expanding my knowledge to innovate and lead effectively. My journey is driven by a commitment to excellence, and to make a meaningful impact in the world.
Unveiling the Secrets How Does Generative AI Work.pdfSam H
At its core, generative artificial intelligence relies on the concept of generative models, which serve as engines that churn out entirely new data resembling their training data. It is like a sculptor who has studied so many forms found in nature and then uses this knowledge to create sculptures from his imagination that have never been seen before anywhere else. If taken to cyberspace, gans work almost the same way.
Explore our most comprehensive guide on lookback analysis at SafePaaS, covering access governance and how it can transform modern ERP audits. Browse now!
Business Valuation Principles for EntrepreneursBen Wann
This insightful presentation is designed to equip entrepreneurs with the essential knowledge and tools needed to accurately value their businesses. Understanding business valuation is crucial for making informed decisions, whether you're seeking investment, planning to sell, or simply want to gauge your company's worth.
Putting the SPARK into Virtual Training.pptxCynthia Clay
This 60-minute webinar, sponsored by Adobe, was delivered for the Training Mag Network. It explored the five elements of SPARK: Storytelling, Purpose, Action, Relationships, and Kudos. Knowing how to tell a well-structured story is key to building long-term memory. Stating a clear purpose that doesn't take away from the discovery learning process is critical. Ensuring that people move from theory to practical application is imperative. Creating strong social learning is the key to commitment and engagement. Validating and affirming participants' comments is the way to create a positive learning environment.
Enterprise Excellence is Inclusive Excellence.pdfKaiNexus
Enterprise excellence and inclusive excellence are closely linked, and real-world challenges have shown that both are essential to the success of any organization. To achieve enterprise excellence, organizations must focus on improving their operations and processes while creating an inclusive environment that engages everyone. In this interactive session, the facilitator will highlight commonly established business practices and how they limit our ability to engage everyone every day. More importantly, though, participants will likely gain increased awareness of what we can do differently to maximize enterprise excellence through deliberate inclusion.
What is Enterprise Excellence?
Enterprise Excellence is a holistic approach that's aimed at achieving world-class performance across all aspects of the organization.
What might I learn?
A way to engage all in creating Inclusive Excellence. Lessons from the US military and their parallels to the story of Harry Potter. How belt systems and CI teams can destroy inclusive practices. How leadership language invites people to the party. There are three things leaders can do to engage everyone every day: maximizing psychological safety to create environments where folks learn, contribute, and challenge the status quo.
Who might benefit? Anyone and everyone leading folks from the shop floor to top floor.
Dr. William Harvey is a seasoned Operations Leader with extensive experience in chemical processing, manufacturing, and operations management. At Michelman, he currently oversees multiple sites, leading teams in strategic planning and coaching/practicing continuous improvement. William is set to start his eighth year of teaching at the University of Cincinnati where he teaches marketing, finance, and management. William holds various certifications in change management, quality, leadership, operational excellence, team building, and DiSC, among others.
What are the main advantages of using HR recruiter services.pdfHumanResourceDimensi1
HR recruiter services offer top talents to companies according to their specific needs. They handle all recruitment tasks from job posting to onboarding and help companies concentrate on their business growth. With their expertise and years of experience, they streamline the hiring process and save time and resources for the company.
What are the main advantages of using HR recruiter services.pdf
Negligence duty of care
1. Negligence – 1. Duty of Care
• DUTY OF CARE
• BREACH OF THE DUTY OF CARE
• CAUSATION
• LOSS OF INJURY
2. Duty of Care
The first consideration is to establish whether the
claimant was owed a duty of care by the defendant.
The category of duty of care owed
Traditional Categories (patient/doctor relationship, driver and
passenger, driver and other road users, manufacturer and
consumer, lawyer and consumer)
Novel Cases, not yet categorized then the test for determining
duty of care must be applied, establishing that one or more of
the three factors is present. – foresight, proximity and
justice/fairness
3. The traditional/established categories
Consumers : - Donoghue and Stevenson, Grant v Australian Knitting Mills
Road Users: - A driver of a car owes a duty of care to other road users
including pedestrians. The Plaintiff must still prove that a duty of care was
owed to him specifically by the defendant to the road user. The court will
not duty of care if the P fails to prove it.
Users and Purchasers of premises : - An occupier of care towards visitors,
whether invited or trespassing, whose presence is lawful or otherwise, who
suffers injury during the course of their visit to the occupier’s premises.
(see Occupiers Liability Act 1984)
4. The traditional/established categories
The unborn Child :- A duty of care can be owed by the defendant to a
plaintiff who was an unborn child at the time of the accident.
Watt v Rama 1972 – (Australian Case) –
P’s mother who was pregnant with her suffered injuries as a result of a motor accident due to D’s
negligent driving.
P was subsequently born and she suffered from brain damage and epilepsy.
It was alleged that P’s handicap was due to the injury sustained by her either in the accident while
unborn or in the course of her birth as a result of injury to her mother .
D denied that he owed a legal duty of care to P while she was still in her mother’s womb.
Victorian Supreme Court held that since was born as a handicap because of the injuries sustained
by her as the result of the accident involving her mother who was pregnant with her at the time of
the accident, D owes P a duty of care.
It was immaterial whether at the time of the negligent act whether the victim was in existence or
not, so long as the victim was the member of the class reasonably likely to be adversely affected by
that act.
5. The Unborn Child
Lynch v Lynch 1991– (Australian Case) –
P was born disabled as a result of injuries sustained by P’s pregnant mother, when she lost
control of her truck which she was driving and crashed into a bank.
P sued her mother for negligence.
Court held that a mother owed a duty of care to her unborn child not to cause him to suffer
injury as a result of her conduct and the child can bring an action against the mother where her
negligence has caused P to suffer the alleged injury.
6. Rescuers
A defendant who owes a duty to another will also owe duty to
those who might foreseeably attempt to rescue that other from
the acute danger in which D’s negligence has placed the other.
HAYNES V HARWOOD 1935
D’s delivery man left his horse-drawn van unattended on the street
A boy mischievously threw a stone at the horse which ran away
A policeman who saw the runaway horses posing a danger to the lives of a
woman and a number of children decided to give a chase and seize the horses.
P was successful in seizing the horses but he was severely injured when a
horse fell on him.
COA held that D owed a duty of care to the plaintiff because it was reasonably
foreseeable that D’ conduct of leaving the horses unattended in a place where
mischievous children may be about and where something may happen to
cause the horses to run away and thereby endangering the public and rescuers
like P might be attracted to help the situation.
If such a rescuer should be injured in the course of such a rescue then D shall
be liable for the injuries.
7. Chapman v Hearse 1961
An accident was caused by Chapman's negligent driving.
Dr. Cherry, the plaintiff went to help Mr. Chapman who was thrown free
fro his car and was lying injured on the road.
While Dr. Cherry was attending to Chapman, Dr. Cherry was run over
and killed by another which was driven by Hearse.
Dr. Cherry’s estate sued Hearse for negligently causing Dr. Cherry’s death
and Hearse joined Chapman as a third party alleging that Dr. Cherry’s
death caused by Chapman’s initial negligent driving.
The issue before the court was that Chapman owed a duty of care to Dr
Cherry, his rescuer.
Held: Chapaman owed a duty of care to Dr. Cherry because it was
reasonably foreseeable that Chapman’s negligent driving would attract
rescuers like Dr. Cherry who would foreseeably be harmed due to
Chapman’s failure to take reasonable care in driving.
8. What if the “P” is abnormal?
In general the duty is owed to a foreseeable plaintiffs. A duty is not
normally owed to an “abnormal plaintiff” unless they were within a
foreseeable class.
Levi v Colgate Palmolive Ltd 1941
P, a woman aged 21 received from D free box containing their samples of its products.
One was an envelope of bath salts.
She dissolved most of the contents of the envelope in a bath of warm salt, in which she
soaked herself in it for 2o minutes.
While in the bath she felt a tingling sensation to her skin and by the time she emerged
from her bath, her face and other parts were all red.
The redness continued and the itch developed and the P sued D for negligence.
HELD: D does not owe P a duty of care.
Where the act is incapable of injuring an ordinary normal person, or is so done that, it
is incapable of injuring and ordinary normal person, the person who does it owes no
duty to do more by reason only of the possibility that a person of abnormality
accentuated susceptibility may be affected by it.
9. HALEY V LEB 1965
D with statutory duty excavated a trench in the street.
D took precautions for the protection of passerby’s which was
sufficient for normal sighted people but P, who was blind suffered
injury because the protection taken by D were insufficient for P.
HELD: In the view of the blind persons who go about the streets
alone was sufficient to require D to have them in contemplation
and to take precautions appropriate to their condition.
LORD REID, “ In deciding what is reasonably forseeable one
must have regards to common knowledge. We are all accustomed
to meeting blind people walking with their stick on the city
pavements, no question can arise in this case any diffciculty in
affording adequate protection to the blind. In considering what is
adequate protection one must again have regard to common
knowledge.”
10. Duty of Care and Omissions
The rule in negligence is that the defendant owes a duty of care not to harm his
neighbor but he does not owe a duty of care to save his neighbor. However, the
situation is different, if it is an omission that is giving rise to a duty to act.
This is where some special or exceptional relationship exists between the parties
which give rise to the liability for failure to act such as control and supervision role,
duty of protection – school and student, parent and child.
Home Office v Dorset Yacht Co Ltd 1970
7 boys from a reform school who were working on an island under the control and
supervision of 3 prison officers
Boys escaped from the island at night and boarded a yacht owned by P
Boys cast the yacht adrift and damaged it.
Owners of the yacht sued the prison authority alleging that the damage to the yacht had
been caused by the prison officers negligence in allowing the boys to escape.
The issue was whether D owed any duty of care to P.
HELD: D did owe P a duty of care not to cause damage to his yacht. The relationship
between the prison officers and the boys imposed on the former a duty to control the
latter, that the duty was owed to all those whom it was reasonably foreseeable might suffer
to injury if the boys were allowed to escape.
11. TEST for determining the existence of Duty of
Care
Neighborhood principle established in Donoghue
and Stevenson
The two stage test and open discussion of policy
The re-treat from the two stage test
The current test: foresight, proximity and fairness
12. Neighborhood Principle
Case of Donoghue and Stevenson in 1932 –
appellant brought an action against the manufacturer of ginger beer bottle.
She drank some of the ginger beer bottle and some was poured into her glass
she noticed the remains of what appeared the decomposed snail floating out of
the opaque bottle into her tumbler.
Appellant claimed damages for personal injury from having suffered
gastroenteritis and nervous shock
At that time, an action can be brought against the manufacturer if there is a pre-
existing contractual relationship between the parties.
However the basis of this case was that a manufacturer owed a duty of care to
the consumers to take care that there was no harmful substance in his product
Lord Buckmaster (dissenting) said if the case is decided on the favour of the
appellant, it was difficult to see how trade could be carried on.
However Lord Atkin (Majority) emphasized the need for proximity which limits
the range of claimants and the “neighborhoods principle” which focuses on the
foreseeability.
13. Significant in the case of Donoghue and Stevenson
Negligence is a separate tort in its own right
Claim for negligence can exist regardless whether there is a contract between
the manufacturer and the injured party
A claim for negligence can exist if the claimant can prove that there is a duty
of cared by the defendant to him, and that there is a breach of that duty of
care and it has resulted in damage which is not too remote.
In order to establish duty of care, the “neighborhood principle” based on
reasonable foresight must be applied.
The manufacturer owes a duty of care to the consumer by not allowing
foreign bodies to contaminate the products by negligence on his side
This decision was confirmed in Grant v Australian Knitting Mills 1936
– claimant suffered dermatitis caused by a chemical used in a
manufacture of woolly underpants made by the defendant. It was held
that a duty of care was owed to him and the defendant were liable even
though the illness he suffered was extremely rare.
14. Two Stage Test and Open Discussion to Policy
Developments in the law of negligence that followed.
Anns v Merton Borough Council 1978 – Lord Wilberforce made a
statement which established the famous two-stage test / which
was responsible for the expansion of the law of negligence in
relation to nervous shock and economic loss in 1980’s
“Firstly one has to ask whether, as between the alleged wrong
doer and the person who has suffered the damage, there is
sufficient relationship of proximity or neighborhood such that, in
the reasonable contemplation of the fomer, carelessness on his
part maybe likely to cause damage to the latter in which case a
prima facie duty of care arises. Secondly, if the first question is
answered affirmatively, it is necessary to consider whether there
are any considerations which ought to negative or to reduce or
limit the scope of duty of the class of the person to whom it is
owed or the damages to which a breach of it may give rise.”
15. Retreat from the “two-stage test”
Governors of the Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd 1985 – Lord
Keith, “a relationship of proximity in Lord Atkin’s sense must exist before any duty of care can
arise, but the scope of duty must depend on all the circumstances of the case, in determining
whether or not a duty of care of particular scope was incumbent upon a defendant it is material
to take into account considerations of whether it is just and reasonable that it should be so”
Leigh and Sullivan Ltd v Aliakman Shipping Company Ltd 1985 – Lord Oliver expressed the
view that the two stage test should not be regarded. “Nor, as it seems to me, can it properly be
treated either as establishing some new approach to what the policy for of the law should be or
as conferring upon the court a free hand to determine for itself in each case what limits are to be
set.”
Yuen Kun-yeu AG of Hong Kong 1988 – Lord Keith, “The two stage test formulated by Lord
Wilberforce for determining the existence of a DOC has been elevated to a degree of importance
greater than its merits and greater perhaps than its authors intended”
Rowling v Takaro Properties Ltd 1988 – Lord Keith again expressed fears about the application
of the two stage test as a general principle of the grounds that to attach too much importance to
policy matters might detract from real issues in a case, so that important and relevant
considerations might be overlooked.
(This test was overruled in Murphy v Brentwood DC because duty too general based on policy
only and gave judges too much power. )
16. Current test ; foresight, proximity and fairness.
The courts now appear to favour what has been
described as the incremental approach
recommended in Caparo Industries v Dickman 1990
and it deals with the question in four stages;
First Stage is to consider whether the consequences of the
defendant’s act were reasonably foreseeable
Second stage is to ask whether there is relationship of
proximity between the parties
Third Stage is to consider whether in all the circumstances it
would appear to be fair, just and reasonable that the law
should impose a duty of a given scope upon one party to the
benefit of other.
17. First Stage: Foresight
The notion of foresight is derived from the case of Donoghue v
Stevenson 1932 in which - the claimant as a member of group who
is likely to suffer harm as a result of the defendant’s acts or
omissions was notionally of importance as a deciding factor for
liability.
Topp v London Country Bus (South West) Ltd 1993, - the claimant
was unsuccessful because he was unable to establish that the
defendant ought reasonably to have foreseen that a joy-rider would
has stolen the bus which his employee left unattended in a lay by.
His wife was killed through the negligence of the unidentified joy
rider when he collided with her and knocked her off her bicycle.
Margereson v JW Roberts Ltd, Hancock v Same (1996) – it was held
that the owner of an asbestos factory should reasonably have
forseen that who children who played near the factory might later in
life develop plumatory injury through dust contamination. A DOC
was owed to them.
18. Second Stage: Proximity
This concept was considered in the case of Donoghue v Stevenson itself, this is an
important device for controlling the existence and scope of the duty of care in
personal injuries cases.
In Yuen Kun Yeu v Attorney General of Hong Kong 1988, Lord Keith
referred to proximity as a synonym of foreseeability on the one hand, and on the
other as referring to the whole concept of the relationship between the claimant
and the defendant as described in Donoghue and Stevenson by Lord Atkin.
In Sutradhar v Natural Environment Research Council 2006, is an
example of a case in which the HOL decided that there was insufficient proximity
between the parties to establish the existence of the duty. On the defendant’s
departments, BGS has conducted a survey of water supplied in Bangladesh . In
keeping with the usual practice, it did not test the water for arsenic. The result of
the survey was sent to various organizations. The claimant alleged that he had
sustained serious injuries as a result of drinking water contaminated by arsenic.
HOL held that there was insufficient proximity between the parties , in the sense of
control over responsibility for the danger to give rise to duty of care. In any event, there
was no duty to test for arsenic. There was also no implied representation from BGS that
the water was arsenic.
19. Third Stage; What is fair, just and reasonable that the law
should impose a duty
Considerations of “what is fair, just and reasonable” are in reality co-
extensive with policy arguments.
In conclusion, while the courts maybe disinclined to take on the role of
legislators, they do have to take steps to keep the tort of negligence
within reasonable bounds and it is the use of policy considerations which
allows them to do this.
Winfield and Jolowicz defined policy as; “ The use of the word “policy”
indicates no more than that the court must decide not simply whether
there is or is not a duty, but whether there should or should not be one,
taking into account both the established framework of law, and also the
implications of a decision that one way or the other might have for the
operation of law in our society.”
What this means is that judges can and do make up law as they go along
in response to changing social conditions.
20. Factors which influence judges may include the following non-exhaustive list:-
Loss of allocation, which party can best afford to bear the loss? Nettleship v
Weston 1971
The Floodgates argument. This involves the fear that a flood gate of claims
may follow a particular decision and is found in a number of “grey areas” of
negligence, such as nervous shock.
Moral considerations
Practical considerations such as forward planning for manufacturers.
The notion that professional people like doctors and barristers need to be
protected from the threat of negligent actions which could inhibit their
professional skills and the judgment. Hatcher v Black 1954
The respective constitutional roles of parliament and the judiciary
Judicial reluctance to create new common law duties where none previously
existed.
Editor's Notes
At one point Lord Atkin’s test was simplified by Lord Wilberforce in Anns v Merton LBC 1978 into a two part test. Is there sufficient proximity between defendant and claimant to impose a prima facie duty?If so, does the judge consider that there are any policy grounds which would prevent such a duty being imposed?The Anns test was always seen as too broad because:It creates a general duty based only on proximityIt gives judges too much power to decide on policy aloneA long line of cases expressed dissatisfaction with the Anns Test eg, Governors of Peabody Donation Fund v Sir Lindsay Parkinson 1985. The test was finally overruled in Murphy Brentwood DC 1990.
Subsequent cases have approved this incremental approach Spring v Guardian Assurance 1995Jones v Wright 1994
Fardon v Harcourt – Rivington1932The court set out the reasonable man test for forseeability: "If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions'."
John Munroe v London Fire and Civil Defence Authority 1997[Tort – negligence - duty of care – no duty situations - public policy – no duty owed in operational matters] D employed fire fighters who wrongly thought all the fires at C’s premises had been put out. One of the fires flared up again, causing damage to C’s premises. C sued D and others, alleging negligence.Held: D owed no duty of care to C. The considerations set out in Hill are applicable as much to the fire brigade as to the police. Imposing a duty of care would not improve the efficiency of the service but would lead to defensive fire fighting. Above all, the imposition of a duty of care in this situation would lead to a flood of claims, since many fires were created by Acts of God or acts of criminals and lunatics, leaving only the fire service to be sued.C lost.Hill v Chief Constable for West Yorkshire(1988) HL [Tort – negligence – duty of care – no duty situations - foreseeability - breach - acts of third parties - public policy]D the police failed to catch the "Yorkshire Ripper". C, the mother of the lat (13th) victim sued the police for negligence alleging inefficiency and errors in their handling of the investigation.Held: The police owed no duty of care towards the daughter to protect her from the Ripper. Some further ingredient is invariably needed to establish the requisite proximity of relationship between the complainant and the defendant; she had been at no greater risk than most other members of the public had. C lostFor application of proximity in establishing a duty of care see:Bourhill v Young [1943] AC 92Bourhill v Young [1943] AC 92 is a Scottish delict case, on the subject of how extensive an individual's duty is to ensure others are not harmed by their activities. The case established important boundaries on the scope of recovery for bystanders, or those uninvolved with physical harm. Where a woman suffered psychiatric harm after walking onto the scene of a motorcycle accident, she was deemed not to be a foreseeable victim, having not been in immediate danger of physical harm.
Hemmens -v- Wilson Browne (A Firm) [1993] 4 All ER 826rofessional Negligence, Legal professionsA solicitor was not liable in negligence, where his mistake might be yet be rectified; this was an inter vivos transaction and the parties could still resolve the position. Though a solicitor had a duty to the beneficiary of a settlement, the settlor could still perfect the deed.Ephraim -v- London Borough of NewhamNegligence, Local Government A Local Authority was liable for its negligent reference of a homeless person to unsafe premises.Housing Act 1985 65(4)