Law of Negligence: 1st and 2nd essentials of Negligence Essay

INTRODUCTION default is a part of that branch of Civil rightfulnessfulness nonicen as Tort legal philosophy. Hence, inattention is a tort. different torts include nuisance, trespass (to someone or goods or land), deceit, passing off, defamation and so on. This shell leave behind examine the tort of negligence, and entrust focus on the first 2 essentials needed to spread out an characterizationionable discipline. Lecture 4 willing consider the third essential, defences and remedies in remissness.On successful fulfilment of this lecture, you should (within the scope of the course) be able to * define the meaning of tort* define negligence* identify and reap the three essentials needed to order a case in negligence * describe and discuss the jural principles hand to establish avocation of safeguard for neglectful actions * describe and discuss the legal principles use to establish province of alimony for negligent advice * identify the attributes of the hypo thetical commonsensical person * identify and describe the guidelines used to establish gaolbreak in the standardized of c beTORTA tort is defined as a civil improper (other than a break-dance of contract) in the form of a gap of calling for which the legal remedy is an award of damages. Tort Law is quite distinct from the Law of Contract. Pentony, Graw, Lennard and Parker (2003, p.367) puts the difference this styleThe main difference between tort and contract is that the law of contract essentially deals with the enforcement of rights that the parties be in possession of created for themselves through and through their promise while the law of torts deals with the enforcement of rights that realise been conferred by law irrespective of agreement.A tort will impose a transaction of some kind on a person or persons in certain mess, and its breach after part entitle the plaintiff to damages ascompensation for the loss or reproach suffered. The rights that the tort law protects include the rights of individuals non to ca-ca their property, reputation, person or certain interests offendd. heedlessnessAs noted supra, Negligence is but one of a number of torts, albeit the most cardinal one. Negligence is the doing of something which a mediocre person would not do or the failure to do something that a bonnie person would do, which inadvertently inflicts harm. That is, the plaintiff does not wee-wee to try on that the suspect either intended his act or its consequences. However, negligence involves more than just chargeless conduct, and involves a combination of the concepts of duty, breach and sufficient familiarity in law.Accordingly, in that location are 3 essentials which the plaintiff mustiness prove on the equilibrium of probabilities in order to succeed in an action in negligence 1. the suspect owed the plaintiff a duty of maintenance2. the defendant failed to conform to the required standard of guard and 3. there was a suffici ent link in law between the defendants conduct and the damage (i.e. loss or wound) suffered by the plaintiff (note the 3rd essential is often discussed in the literature under the heading of damage instead of sufficient connection in law (for example, the Understanding Business Law text at paginateboy 718). There is little practical difference between the two terms for our purposes, and the essentials as listed above will be used in our discussions.The Law of Negligence has evolved dramatically during the twentieth century. Donoghue v. Stevenson 1932 AC 562 was a landmark case which laid down the tryout for duty of grapple and held that a manufacturer was liable to the eventual(prenominal) consumer for any damage or injury arising from the consumption or use of goods which were faulty because of the manufacturers negligent act. A further watershed in negligence law in Australia came with pomelo and Associates v. Parramatta city Council (1981) 150 CLR 225, where the court held that those who give gratuitous advice could be held liable for anydamage if the advice was negligent. ** DUTY OF headacheThe Defendant must owe the Plaintiff a duty of care, which the Plaintiff must prove on the equalizer of probabilities. If no duty of care is owed, the Plaintiffs claim must fail. The judge at the trial has the obligation for deciding whether or not a duty of care hold ups as the impression is a question of law having regard to the facts of the case. The method used to try on the existence of a duty of care will differ depending on whether the action involves negligent advice or a negligent act. The test for duty of care in negligent acts is now relatively complicated, although it evolved from the relatively straightforward test from Donoghue v. Stevenson 1932 AC 562 which was based on whether or not the injury was reasonably foreseeable, and the closeness or proximity of the plaintiff to the defendant.On the other hand, the test for duty of care in negl igent advice true from Shaddock and Associates v. Parramatta metropolis Council (1981) 150 CLR 225 and is based on whether or not the advice was for a real matter which the adviser is expect to give his or her best advice and it was conceivable that the recipient act on the advice. ** work of cautiousness for thoughtless Acts ** Historical background Doctrine of Reasonable Foreseeability and Proximity The historic test for establishing the existence of a duty of care in actions involving negligent acts was laid down by the House of Lords decision in Donoghue v. Stevenson 1932 AC 562. In that decision, the pair duty of care elements of reasonable foreseeability and proximity were stated in the neighbour test by Lord Atkin ** The rule that you are to love your neighbour becomes in law, you must not injure your neighbour and thelawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you crumb reasonably foresee would be likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be persons who are so closely and directly touched by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question. ** Hence, for Lord Atkins neighbour test, two issues needed to be satisfied reasonable foreseeability and proximity. For reasonable foreseeability, the question was would a reasonable person, in the identify of the Defendant, have foreseen the likelihood of injury to the Plaintiff arising out of the Defendants behaviour? For proximity, the question can be posed thus was the proximity (closeness) of the injured Plaintiff such that the Defendant ought to have had him/her in mind when doing the alleged negligent act?The test of reasonable foreseeability is an objective one that is, what would a reasonable person have foreseen, rather than what the Defendant actual ly foresaw at the time. Further, it is not necessary that the exact temper of the loss or injury been foreseen, just the likelihood of injury of the same general character as that suffered. Both aspects do not require the Defendant to be actually aware of or know the Plaintiff as an individual it is sufficient that the plaintiff belong to a class of persons of whom the Defendant ought to have been aware when doing the alleged negligent act. *-Case thick reading Understanding Business Law (2008) text, page 695/696 -Donoghue v. Stevenson 1932 AC 562** Contemporary situation * From a number of decisions in the 1990s, the High Court moved definitely away from a one-best climb for duty of care fornegligent actions and opted for a broad approach. In special, the High Court expressed dissatisfaction with proximity proximity is no longer accepted as the specify test authors italics to establish whether there is a duty of care in any particular case (Pentony, Graw, Lennard and Parke r, 2008, p. 698). As the Understanding Business Law text (at page 698) notes, the following pattern appears to best nominate current High Court thinking in the establishment of a duty of care ** 1. subside whether or not a reasonably foreseeable luck of injury existed without reasonable foreseeability, no duty of care can exist. In some cases (especially those involving direct physical harm from the negligent action), reasonable foreseeability may be adequate in establishing a duty of care by itself. ** 2. Determine whether or not the present case is analogous to cases in which a duty of care has already been established (or is in a category in which a duty of care has been held not to exist). For example, employers are under a general duty of care, which cannot be delegated to others, to provide a safe system of work for their employees. The driver of a motor vehicle owes a duty of care to pedestrians, other road users and adjacent property owners. Other kinships which may giv e rise to a duty of care include professionals to clients, schools to students and manufacturers to consumers. ** 3. If the case does not gloaming into an established category, the Court may look at the important features of the case to establish whether a sufficiently close neighbourhood relationship exists to justify a duty of care. In establishing this, the courts can consider the plaintiffs vulnerability in the matter, along with their reliance on the wrongdoer, the wrongdoers assumption of responsibility (if any) and the wrongdoers level of control in their actions. ** 4. Determine whether or not policy considerations exist which may work against the finding of a duty of care in such circumstances, especially where a defendant might otherwise be subjected to liability of an indeterminate extent such considerations allow the courts to iron out competing considerations of legal policy to determine whether, despite proof of foreseeability and neighbourhood, a duty should not be compel (Pentony, Graw, Lennard and Parker, 2003, p. 374). ** - Specific reading from the Understanding Business Law (2008) text * - Chapter 22, separate 22.22 through 22.29 discusses the contemporary approach in detail. ** Once the facts of the case aid the finding that the Defendant owed the Plaintiff a duty of care when doing the alleged negligent act, it does not automatically lead to an award of damages, as the plaintiff must bland prove the other essentials *(i) the defendant was in breach of the Standard of Care (refer 2nd Essential below) (ii) there was a Sufficient Connection in Law (refer 3rd Essential, Lecture 4)Duty of Care for negligent AdviceThere are clear differences between negligent words and negligent acts. According to Chief evaluator Gibbs in Shaddock and Associates v. Parramatta urban center Council (1981) 150 CLR 225, there are three key points of departure, summarized as follows. First, negligent words cannot cause loss by themselves they cause loss on ly because persons act on them in reliance. Second, it is not uncommon for people in amicable or informal contexts to make statements less carefully than if they were giving advice in rail line orprofessionally. Last, words may foreseeability receive such a insurance coverage or circulation that the application of Donoghue v. Stevenson (i.e. neighbourhood) might lead to many claims for large amounts of damages. Accordingly, the High Court in Shaddock developed the following test involving the following three questions, all of which must be answered in the positive for a duty of care to exist1. Was the advice abandoned on a serious matter?2. Did the verbaliser realise, or ought he to have pull in, that his advice would be acted upon? 2. Was it reasonable for the recipient to act on the advice?-Case Summary reading Understanding Business Law (2008) text, pages 729-730 -Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225Once the facts of the case support the Shaddock tests, it can be concluded that the adviser owed the plaintiff a duty of care. However, such a finding does not automatically lead to an award of damages, as the plaintiff must still prove the other essentials(i) the defendant was in breach of the Standard of Care (refer 2nd Essential below) (ii) there was a Sufficient Connection in Law (refer 3rd Essential, Lecture 4).* BREACH OF STANDARD OF CAREcondition that a duty of care is owed, then how much care has to be exercised? The defendant has to take reasonable care, that is, to act as a reasonable person would have in the circumstances. The reasonable person is not a real person merely a hypothetical benchmark or device used by the courts, and is deemed to have the following attributes1. IntelligenceThere is a presumption of average intelligence. If a defendant has above average intelligence, this person is not judged according to above average intelligence. On the other hand, if a person has below average intelligence, th is person is judged according to the same standard the standard for a person of average intelligence.2. Knowledge and SkillThere is a presumption of a certain level of noesis and skill that can reasonably be expected of persons in the position, trade, qualifications or profession of the defendant. The defendants actual knowledge and skill are generally irrelevant, as the presumed amount depends on the qualifications the person possesses. For example, drivers must have the skill of a competent driver, and people in a trade, profession or business are measured by standards of knowledge and skill which one can reasonably expect in the trade, profession or business. These standards are set by objectively analysed residential district standards and not the prevailing standards of the particular profession which may have lagged behind perceived comm building blocky standards.If a person holds out that they have special knowledge or skill not normally associated with the trade, business or profession, then that person will be judged on the basis that he does have these superior standards. However, if people who have extra expertise do not hold themselves out as having such additional expertise, then they will only be judged by the standards applicable to the trade, business or profession they are practising. There are some exceptions, including minors, who are judged against normal children of the same age. ** Guidelines as to Breach of Standard of Care The Courts have developed various guidelines which may be relevant and useful in determining a breach in the standard of care in the circumstances* The chance of Harm* The Seriousness of Possible Injury* The be and Opport unities of reducing or avoiding the attempt * TheValue of the Defendants Conduct* Conformity with Established Standards** The Probability of HarmThe guideline establishes that the greater the probability of harm, the greater the amount of care which has to be taken. That is, the greater the ri sk of some kind of harmful injury or loss occurring in the circumstances, the greater the standard of care that would be shown by a reasonable person in their actions and consequently, the greater the probability of a breach if such reasonable care is not exercised. *-Case Summary reading Understanding Business Law (2008) text, page 709 -Bolton v Stone 1951 AC 850** The Seriousness of Possible InjuryThe guideline establishes that the more serious the possible consequences of injury, the greater the degree of care which has to be shown. That is, the greater the likelihood that some serious injury will arise in the circumstances, the greater the standard of care that would be shown by a reasonable person in their actions and consequently, the greater the probability of a breach if such reasonable care is not exercised. *-Case Summary reading Understanding Business Law (2008) text, page 708 -Paris v Stepney Borough Council 1951 AC 367** The Cost and Opportunities of Reducing/Avoiding the RiskThe guideline establishes that when cost and difficulty of avoiding risk is great and the actual risk is humiliated, then there is less likelihood of a breach, and vice versa. That is, if the cost and difficulty of avoiding the risk is small and the actual risk is great, then there is a greater likelihood of a breach if therapeutic action is not taken.-Case Summary reading Understanding Business Law (2003) text, page 381 -Latimer v AEC Ltd 1953 AC 643 (section 16.40)*-Case Summary reading Understanding Business Law (2008) text, page 712 -Haley v capital of the United Kingdom Electricity Board 1965 AC 778** The Value of the Defendants ConductThe guideline establishes that the less the social or economic value of the defendants conduct the greater the likelihood of a breach in the standard of care and vice versa. This of course does not mean that providers of essential services can be careless. The guideline arguably imposes a public policy dimension on the standard of ca re issue.* Conformity with established standardsConformity with established standards in any trade or profession is important evidence that reasonable care exercised, and vice versa.-Case Summary reading Understanding Business Law (2008) text, page 714 -Derrick v Cheung (2001) 181 ALR 301-Case Summary reading Understanding Business Law (2008) text, page 715 (section 22.46) Mercer v Commissioner for Road Transport and Tramways (NSW) (1937) 56 CLR 580The standard of care is set by reference to objectively assessed community values. Indeed, just because a defendant follows common practice does not necessarily show that he is not negligent as a common practice may be shown by evidence to be itself negligent. ** - Reading for this lecture from the Understanding Business Law text * - Read Chapter 22, sections 22.1 through 22.47. sections 22.67 through 22.74 *** self test exercises Lecture 3Multiple choice questions1. Which of the following is true of torts?a) includes any civil wrongb) has an award of damages as the legal remedyc) does include breaches of contractd) all of the abovee) twain (b) and (c) above2. Which of the following is not relevant in establishing Negligence? a) there was a contractual agreement between the plaintiff and the defendantb) the defendant failed to show the required standard of carec) the defendant owed the plaintiff a duty of cared) the defendant intended to harm the plaintiffe) both (a) and (d) above3. The twin tests of reasonable foreseeability and proximity have historically been used to establish a) whether or not a breach in the required extent of care has arisen b) a duty of care for negligent actionsc) that the damage suffered by the plaintiff was not too remote d) the defendants liability for damages in tort generally e) none of the above4. Which of the following is relevant to the contemporary approach to establishing a Duty of Care for negligent conduct? a) determine whether or not a reasonably foreseeable risk of injury e xisted b) determine whether or not the case before the court is analogous to previous cases in which a duty of care has been found to exist c) determine whether a sufficiently close neighbourhood relationship exists to justify a duty of care d) determine whether or not policy considerations exist which may work against the finding of a duty of care e) all of the above5. In which of the following is Donoghue v Stevenson 1932 most associated in this unit? a) value of the defendants conductb) remoteness of lossc) occasiond) duty of care for negligent actse) contributory negligence6. Under the contemporary approach to establishing a Duty of Care, which of the following relationships would likely give rise to a duty of care? a) Alan, an employer and Bob, an employee of Alanb) Echo, a driver of a motor vehicle, and Foxtrot, another road user c) Alpha, a doctor, and Bravo, his patientd) Maker, a manufacturer, and User, a consumer of his products e) all of the above7. Which of the followin g is a requirement for establishing duty of care in negligent advice from Shaddock v Parramatta City Council (1981)? a) theadvice must be true and correctb) it was reasonable for the recipient to act on the advice b) the speaker realised or should have realised that the recipient would act on the advice c) the recipient paid for the advicee) both (b) and (c)8. In relation to an action in Negligence, how much care must the defendant have shown in the circumstances to avoid breaching the required standard of care? a) the amount of care a reasonable person would have shownb) the amount of care the plaintiff would himself have shown c) the amount of care the defendant actually showedd) the amount of care an ordinary person standing nearby would have shown e) the amount of care a lawyer would have shown in the circumstances9. In which of the following is Haley v London Electricity Board 1965 most associated in this unit? a) probability of harmb) seriousness of possible injuryc) costs and opportunities of avoiding the riskd) value of the defendants conducte) conformity with established standards10. In which of the following is Paris v Stepney Borough Council 1951 most associated in this unit? a) probability of harmb) seriousness of possible injuryc) costs and opportunities of avoiding the riskd) value of the defendants conducte) conformity with established standards11. In which of the following is Derrick v Cheung (2001) most associated in this unit? a) probability of harmb) seriousness of possible injuryc) costs and opportunities of avoiding the riskd) value of the defendants conducte) conformity with established standards12. In which of the following is Bolton v Stone 1951 most associated in this unit? a) probability of harmb) seriousness of possible injuryc) costs and opportunities of avoiding the riskd) value of the defendants conducte) conformity with established standards**** Short Answer Questions ** Question 1In a negligence case, name and describe one (1) g uideline which the court may use to determine whether the required standard of care has been met.Question 2Briefly explain the significance of the decision in Donoghue v. Stevenson.Question 3In the tort of negligent advice, how does the law determine whether the defendant owed the plaintiff a duty of care?Question 4Who or what is a reasonable person?LAW1100DTUTORIAL 3Question 1The WA Parliament passes legislation and an assiduity body is concerned about the interpretation and application of a particular section which statesno person shall sell or offer to sell an offensive arm in a shop.Unfortunately, there is no definition of the term offensive weapon in the legislation. The industry bodys concern about the possible application of the Act to four of its members (a supermarket, a pursual shop, a coffee shop proprietor and an antiques shop owner) centres around four possible scenarios(i) Would the section apply to a supermarket which gives away a free steak knife for every purchas e of goods over $100? (ii) Would the section apply to a hobby shop which sells a plastic toy gun for $20 to a guest? (iii) Would the section apply to a coffee shop in which a customer potable coffee at a table also sells a flick-knife for $15 to another customer? (iv) Would the section apply to an antique shop which sells a Napoleonic cavalry sword to a gatherer for $25,000?What is the likely interpretation of the statute for each of these scenarios? Use the rules of statutory interpretation to support your answer.Question 2A section of an Act provides as followsWhere a mortgagee sells land to recover the amount of a loan advanced on the security of the land and the sale of the land provides more than the balance of the mortgage, the balance after sale shall go to the person entitled to the property.Mark mortgaged his land to ABC marge in return for a loan of $200,000. Mark is unable to repay the loan, and the ABC Bank (which was given the power of sale by the mortgage document) sold the land to Fred for $250,000. Using the rules of statutory interpretation, which party gets the balance of $50,000 is it ABC Bank, Mark or Fred?Question 3We are told that law is a set of rules that is at long last enforced in the Courts. One source of law is statute law. To enforce a rule in a statute,the meaning of it must be understood. To understand the meaning, the words of the rule must be interpreted. If we are to have confidence in the law, this interpretation must be consistent case after case. mull over on the above statement, and then describe the acquired immune deficiency syndrome to interpretation provided by the Parliament and the common law statutory interpretation rules used by the Courts. In your answer, discuss whether or not you think these aids to interpretation and rules are sufficient to ensure the consistent interpretation of statutes.