Legal systems: Duty of Care and Negligence

Establishing negligence requires the plaintiff to prove the three elements of negligence before a court. The elements are that, the defendant owed the plaintiff a duty of care, the duty of care was breached, and that the harms suffered were directly related to the defendant’s breach. For a successful claims the plaintiff must satisfy all three by the balance of probabilities, which has been the case since Donohue v Stevenson. Simon must therefore prove that there was a duty of care owed to him by the defendant, his teacher, Mr Philpot. Therefore, he must prove that the harm suffered would have been reasonably foreseeable due to the actions or omission of the defendant. In this case, Mr Philpot owes Simon a duty of care, as it is reasonably foreseeable that a failure to provide sufficient supervision could result in injury when considering the nature of the environment they are in and the age of the students. Therefore, the first element is satisfied.

At the first stage of the Anns test, two questions arise: “The first question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish prima facie duty of care. The first inquiry at this stage is whether the case falls within or is analogous to a category of cases in which a duty of care has previously been recognized. The next question is whether this is situation in which a new duty of care should be recognized. At the second stage of the Anns test, the question still remains whether there are residual policy consideration outside the relationship of the parties that may negative the imposition of a duty of care. It is useful to expressly ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed. This part of test only arises in cases where the duty of care asserted does not fall within a recognized category. The trial judge concluded that the pleadings disclosed a cause of action in negligence and that the plaintiffs should be permitted to bring a class action”.

For example, if an individual is speeding and hits a person crossing the street that is not on a designated cross-walk, the driver is considered criminally negligible for their actions. Although they did not intentionally hit the pedestrian, they were not abiding by the speed limit and therefore their careless actions caused the accident. Criminal negligence does not excuse an individual’s actions and they are still considered legally liable, but it is less serious than recklessness because the individual did not intentionally risk the lives of others, they simply did not foresee the possible dangers that could occur because of their actions. The failure to foresee the consequences is the hardest element to prove in criminal negligence because the it implies that the individual had a brief loss of common sense. The driver, for instance, should know that, by speeding, one’s time to react to certain situations may not be adequate enough to prevent an

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.

The Tort of Negligence put the claimant in the position to prove that the defendant owed to them a duty of care, the defendant breached that duty and the claimant must have suffered damages as result of that breach (Donoghue v Stevenson [1932] AC562).

The assumption of risk is used in a defendant’s defense. Express assumption of risk is the written or oral agreement that acknowledges the plaintiff knew the risks involved. The implied assumption of risk includes the primary assumption and secondary assumption (Rosenthal, 2003-2004). Many risks fall into the category of primary assumption of risk. The primary assumption of risk is when the plaintiff is aware of the risks involved in a specific activity, but chooses to participate anyways. There is no negligence involved within the primary assumption of risk. The second assumption of risk is known as comparative negligence (Fitzgerald, 2005). Comparative negligence is when the plaintiff is partially at fault (Rosenthal, 2003-2004).

Spring v Guardian Assurance plc9 is key for this discussion. The claimant “won the case on grounds of the defendant’s negligence”.10 The defendant owed the claimant a duty of care in terms of providing a reference. However, there was a partial split in decision between the judges on the defendant’s rejection of liability towards the reference. The Hedley Byrne fundamentals of proximity argued the case focused on

Small injuries or damages may occur when products malfunction, death may occur, or there could be damage done to ones property. The company could face possible lawsuits and in order to prove negligence, an individual must have had a duty of care, which is defined as having responsibility to act in the best interest of another. A company must always be ready to defend itself in all the possible issues that may arise and cause any form of lawsuit (WiseGeek, 2003).

Before the court is a negligence claim against Interstate, who filed a motion to dismiss based on lack of jurisdiction. When determining if the court should accept the motion to dismiss, it must first examine if the contact was purposefully directed at the forum state by the defendant so as to abide by the notion of fair warning. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). When determining if the contact is purposeful in a tort claim the standard is a tortious contact intentionally directed to purposefully produce a tortious effect in the forum state. Calder v. Jones, 465 U.S. 783, 789 (1984). Determining if a contact is purposeful relies on what it is not; it is not foreseeable. Mere foreseeability of causing injury is not a

Before 1932 there was no generalised duty of care in negligence. The tort did exist and was applied in particular situations where the courts had decided that a duty should be owed, eg, road accidents, bailments or dangerous goods. In Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said:

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

Injury Statute and its relation to the doctrine of assumption of risk and the applications to this

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

The case of Donoghue v Stevenson created a definition of a ‘neighbour’ towards a duty of care in negligence within the bounds of an indirect causal link without the added implication of a willful act or inherently dangerous goods. This provided a mechanism for a third party to go beyond the doctrine of privity and sue even if not a direct party to a contract.