Case Analysis : ' The Neighbour Principle '

The Civil Liabilities Act 2002 defines negligence as a failure on the part of the defendant which results in the harm of the plaintiff which could have been prevented by taking reasonable care. The breach of duty must be foreseeable, Sullivan v Moody. The risk must be not insignificant, and a reasonable person under similar circumstances would have taken precaution against the harm. In this case

Negligence is upholding a certain leavel of care by determining if it meets the four components nessessary for a claim; duty, breach of duty, causation, and damages. In this case duty was not handled correctly. Duty means you agree to take care of a health care patients. THe girls working at the Good Samaritan Home did not take proper care of the residents. Breach of duty is broken down into four categories; Misfeasance, nonfeasance, and malfeasance. In this case the breach of duty refers to nonfeasance. There was a failure to act, by no other employees bringing the ause to attention. Causation requires an injury to be due to the healthcare professionals negligence. In the case of abuse in the Good Samaritan case there was no other way the injuries could have happened. The damages refers to the injuries caused to the residents.

There are three elements that must be present for an act or omission to be negligent; (1) The defendant owed a duty of care towards the plaintiff; (2) The defendant breached the duty of care by an act or omission; (3) The plaintiff must suffer damage as a result - be it physical, emotional or financial. The court might decide that Freddy (the plaintiff) was owed a duty of care by Elvis (the defendant) if they find that what happened to Freddy was in the realm of reasonable forseeability - any harm that could be caused to a 'neighbour' by Elvis' actions that he could reasonably have expected to happen. The 'neighbour principle' was established in the case of Donoghue v. Stevenson (1932).

The issue in this case as it relates to the Kentucky tort of negligence is governed by rules or principles established by the courts. The elements of negligence are a duty the defendant owes to the plaintiff, a breach of that duty by the defendant, a causal connection between the breach and the plaintiff's injury, and actual injury. In the absence of any one of these elements, no cause of action for negligence will lie.

In certain situations, a duty of care is owed to another person. For example, a surgeon owes a duty of care to whoever they operate on. The existence of a duty of care is established by the Neighbour Test which was brought in by Lord Aitken after the Donoghue v Stevenson case;

When a law enforcement officer or other public employee is accused of potentially criminal conduct, they may face three different kinds of interviews or interrogations. If an officer is interviewed as a criminal suspect, they have the absolute right to decline to answer any questions, or to insist that they have a lawyer of their choosing to attend the interview. The first is type is during a criminal investigation; the second is during a disciplinary investigation and finally during the course of civil litigation where there has been damages. During a criminal interview, there is no professional, ethical or moral duty to participate especially without the assistance of an attorney to represent the officer under investigation. It has come to a surprise that many experienced officers will waive their right to silence and give the investigators an audio recorded statement. Some of the inexperienced criminals do not make incriminating statements. The motive for cooperation is to avoid unfavorable publicity.

The only time a person may be held liable is if they do damage while on the property.

The main legal issue covered in the Novakovic v Stekovic case is the tort of negligence followed with personal injury. In the appellant’s point of view, according to the Civil Liability Acts 2002 (NSW) the recognized duties of care include (7): the occupiers to visitors, tenants, even trespassers.(1) Hence the respondents must precaution all the potential risk which may cause injury to the visitors in their premises. For this point, the respondents admitted at trial that they owed the appellant a duty of care to take reasonable steps to avoid a foreseeable risk of injury. So the issue followed up is: Did Michael Stekovic and Snezana Stekovic breach their duty of care?

Torts of negligence are breaches of duty that results to injury to another person to whom the duty breached is owed. Like all other torts, the requirements for this are duty, breach of duty by the defendant, causation and injury(Stuhmcke and Corporation.E 2001). However, this form of tort differs from intentional tort as regards the manner the duty is breached. In torts of negligence, duties are breached by negligence and not by intent. Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm(Stuhmcke and Corporation.E 2001). The standard measure of negligence is the universal reasonable person standard. The assumption in this case is that a reasonable

The main idea of the law of negligence is to ensure that people exercise reasonable care when they act by measuring the potential harm that may foreseeably cause harm to other people. Negligence is the principal trigger for liability to ascend in matters that deal with the loss of property of personal injury. Therefore, a person cannot be liable for something unless they have been found negligent or have contributed to the loss of property or injury to the plaintiff (Stuhmcke, 2005). There is more to

Whether the breach of duty has caused the plaintiff’s injury is the third element of negligence. Requirements for causation are causation in fact and proximate cause. Causation in fact is determined by the “but for” test, which means if it was not for the defendant’s breach of duty, harm or injury would not have occurred. Proximate cause is when the connection between the action (breach of duty) and the injury is strong enough to impose liability. Another issue that needs to be considered is foreseeability because the defendant’s action must have created a foreseeable risk of injury. In this case, the crew of Titanic was navigating the ship during the night at high rate of speed in water with

“In the majority of cases that come before the courts, whether the defendant owes the plaintiff a duty of care can be determined from precedent created by earlier cases; for example manufacturers of goods owe a duty of care to consumers, motorist owe a duty of care to other road users, boat captains owe a duty of care to their passengers, teacher owe a duty of care to their students, occupier owe a duty of care to persons who come on to their property. . (Andy Gibson, Douglas Fraser, Business Law 5th edition, Pearson 2011 page No.165, 166 and 169).”

In Gregg v Scott, Mr. Malcolm Gregg (‘the claimant’), the House of Lords examined the law of negligence in the area of personal injury. In order for the claimant to have a successful claim in court, the onus to shifts to the claimant to demonstrate that a duty of care owed by the doctor, there was a breach of that duty, an injury was sustained, and the negligence on behalf of the doctor Dr. Andrew Scott (‘defendant’) was a cause of the ‘injury’. If these elements are not satisfied, the claimant may lose its entitlement to full compensation.

The first point to note when analysing occupiers’ liability is that originally it was separate to the general principles of negligence which were outlined in Donoghue v Stevenson .The reason for this “pigeon hole approach” was that the key decision of occupiers’ liability, Indermaur v Dames was decided sixty six years prior to the landmark decision of Donoghue v Stevenson . McMahon and Binchy state the reason why it was not engulfed into general negligence, was because it “… had become too firmly entrenched by 1932 … to be swamped by another judicial cross-current” Following on from Indermaur v Dames the courts developed four distinct categories of entrant which I will now examine in turn.

The common law duty of care was established in Donoghue v Stevenson [1932] AC 562 (HL) and refined in Caparo Industries plc v Dickman [1990] 2 AC 605 (HL). Any party including public authorities may owe a duty of care to another if particular conditions are fulfilled. The Caparo conditions apply to public bodies in respect of whether it is fair, just and reasonable to impose a duty of care on their actions.