The Violation Of The Duty Of Care

Decent Essays

As I was saying, negligence is the breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant. A successful negligence suit must have three elements present. Element one is duty of care, meaning there is a legal obligation imposed in circumstances where harm could be reasonably foreseen to occur to others. This element can be found by applying the ‘neighbour principle’ established in the Donoghue v Stevenson case. The neighbour principle states that a person must take reasonable care to avoid omission which you can reasonably foresee would be likely to injure your neighbour. Element two is breach of the duty of care. The plaintiff has the burden of proof to prove, on the balance of probabilities, that the defendant had a duty of care and that duty of care was breached. The third element is injury or damages suffered as a result of that breach. The defendant must be able to reasonably foresee that the plaintiff could be hurt by their actions. In the scenario the couple out for dinner, Mikaela who is anaphylactic consumed nuts from her dessert, Mikaela made the waiter aware of her condition. The waiter proceeded to ensure Mikaela that her directions would then be passed on to the main chef both verbally and on paper. Only a spoonful into her desert and within moments Mikaela had collapsed and was unable to breathe. Why did this happen when strong precaution was taken to avoid this? The answer to this is the ‘but for’ test

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