The Pros And Cons Of Tort Law

Duty of Care: best interest; defensible decision making; contextualising behaviour; identification of positive and negative risks

Policing requires members to balance both between the wishes of the public and of politicians regarding how they are to enforce and appropriately uphold the law in their respective areas (Phillips, 1984). The most important element of accountability can be seen of the knowledge that the police as an institution and as individuals must not be subject to undue influence by any individual, be it as within the general public or as a part of the law enforcement community. Where law enforcement acts objectively and neutrally in the upholding of the law, the general public becomes aware of the knowledge that as long as the law is obeyed and remains unviolated, there is no reason to fear the legal and penal justice system. On the other hand, if law enforcement is seen to be influenced by external bribery or internal governmental pressure, the wider public becomes aware that the only true law is that of the economic or political influence being brought to bear on law enforcement members, therefore invalidating the notion of due process, and making a mockery of the entire system of justice in

There are two common factors that must exist before the law says a duty of care exists, which are

The tort of negligence was established with the leading case of Donoghue v Stevenson (1932) . Donoghue got sick from having a drink in a café after finding a snail in the bottle. Around this time, there was no route for litigation due to no contractual association. The only contractual commitment was with Donoghue’s friend who bought the drink and the café owner. Lord Atkin quoted the Bible’s principle of

| |Duty of care can be defined as "an obligation, recognised by law, to avoid conduct fraught with unreasonable risk of danger |

In Caparo Industries plc v Dickman7, it was determined that courts had to test the duty by “whether the damage was reasonably foreseeable, whether there was a relationship of proximity between claimant and defendant, and whether it is just and reasonable to impose a duty.”8 If so, then a duty of care could arise.

The rule applied in this case states that when a relationship is created between the police and an individual which gives rise to a special duty, the municipality loses its governmental immunity and liability may result. A municipality may assume this relationship by making affirmative actions in an emergency situation. Additionally, failing to fulfill an undertaking to provide police protection does not result in municipal liability unless it is proven that police conduct increased the risk.

Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. See:

This report shall examine the role of the police in the criminal justice system. For background it will detail a brief history of the development of the police then look at the later development of police powers of arrest, detention and of stop and search. Further to this it will examine the role of the police in miscarriages of justice and the effects of these miscarriages on the development of safeguards for people detained by the police. Also the measures taken to prevent further miscarriages of justice such as the development of the Crown Prosecution Service (CPS) to decide if the evidence is there and a prosecution is likely to be successful.

“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).”

Despite the general principle excluding liability for omissions, liability may arise in certain exceptional circumstances. Although these situations where a duty may arise on the basis of an omission are difficult to classify, what is usually required in all of them is some element of proximity. This may be created in a number of situations which will now be looked at. In addition, in such cases, the factors for establishing a duty of care (forseeability, proximity, fair, just and reasonable) laid down in Caparo will also need to be looked at.

In Alcock v Chief Constable of South Yorkshire Police , there is also the issue regarding the cost of deterring beneficial activities. As the ‘Hillsborough disaster’ was broadcasted live, many

The fourth category is that of a trespasser. This category has radically developed in the last thirty years. Originally a trespasser was owed a very limited duty of care. The duty owed to a trespasser was that they could not be injured “intentionally and not to act with reckless disregard to their person or property”. The idea behind such a narrow duty was that a trespasser was illegal on the property and that the occupier should owe little

The purpose of this assignment is to discuss the creation and application the case law resulting from the decision in Donoghue v Stevenson . This decision is often cited in relation to the tort of negligence and a duty of care. As such it could be misunderstood as being the preeminent case for the principles of negligence or duty of care alone. It is however the landmark precedent case for the tort of negligence outside of a contract when taking into account ‘duty of care’ and the ‘neighbour priciple’.

The case of Donoghue versus Stevenson was a landmark case in Scottish and English tort law, establishing from that point forward a precedent for identification of negligence as a determination of liability. My colleague's posting provides some interesting insight into how this precedent was arrived at. The posting also leaves room for yet more extensive discussion on the legal implications of the 1932 decision.