Explain and analyse the common law tests used by the judiciary to determine liability under the tort of negligence for the following two types of injury claim:
Physical injury
Psychiatric injury.
In order to establish the tort of negligence the claimant must prove three things:
a. that the defendant owed him a duty of care.
b. That the defendant breached this duty.
c. That a reasonably foreseeable type of damage was caused by the breach.
Donoghue v Stevenson [1932] AC 562 (House of Lords) is a seminal case to set out the general principles of duty of care. It isalso called neighbour test or neighbour principle. In Donoghue V Stevenson the house of Lords deemed it necessary to overcome the problems generated by the privity of the contract in order to provide an alternative route of claim for an injured party. It was Mrs Donoghue’s friend that purchased the ginger beer that ultimately caused her injury and therefore only her friend that had a right to sue under the contract. The house of Lords solved this problem by imposing liability in negligence on the owner of the café, specifying that such would be possible where a duty of care could be found to lie between the owner ( the tortfeasors) and the victim Mrs. Donoghue. Lord Atkin outlined he parameters of the duty of care in this field in the following often quoted terms:
"You must take reasonable care to avoid acts or omissions which you can 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 affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question."
The ca...
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...pose a duty of care on the police .
Fair, just and reasonable
The third part of the test, whether it is fair, just and reasonable to impose a duty of care, is really a matter of public policy. The courts are usually reluctant to impose a duty on public authorities, as seen in the case of Hill v Chief Constable of South Yorkshire (1990) where it was pointed out that imposing a duty on police could lead to policing being carried out in a defensive way which would divert attention away from the suppression of crime, leading to lower standards of policing, not higher ones.
However, in some circumstances the police do owe a duty of care. In the case of MPC v Reeves (2001) the police took a man into custody who was a prisoner known to be at risk of committing suicide. Whilst in custody he hanged himself in his cell. The court found that the police owed him a duty of care.
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
The case of Kamloops v. Nielson was a landmark decision for tort law, since it established the duty of care principle in Canadian private law, which prior to this case was used in the Anns v. Merton case and expanded the scope of duty first identified in Donoghue v. Stevenson. In the historic case of Donoghue v. Stevenson, duty of care was established to include anyone that could be foreseeably harmed by someone’s actions, creating the neighbour principle. The Anns v. Merton case expanded the scope of the neighbour principle to including public bodies, such as the municipality. The case involved a faulty building foundation, which resulting in requiring repairs for the house, and whether the municipality should have to pay for the repairs, since it was the job of the municipality to inspect and ensure the building was properly constructed. Whether public tax allocations should be subject to tort litigations was placed in question in the case but the municipality was held liable for damages nevertheless.
The duties of a police officer are to ensure that there is maintenance of public peace and order. In order to perform their duties and obligations they require certain powers, authority in order to perform their duties and this extends the power to arrest. This paper focuses on the decision of the court in DPP v Carr, the amendments on Law Enforcement (Powers and Responsibilities) Act (LEPRA) section 99 and a critical evaluation of statements made by Sentas and Cowdery.
McOskar Enterprises, Inc. owns and manages a health and fitness center identified as “Curves for Women”. Tammey J. Anderson, the complainant, joined Curves on April 2, 2003. As part of the joining process Anderson signed a release of liability agreement. This agreement released Curves from any liabilities related to injuries that might be sustained by contributing in any activities or through the use of equipment. The agreement also stated that participants agreed to all risks of death or injury that could occur, Anderson read and signed the agreement of terms with Curves. After completing the liability agreement, Anderson began working out under the observation of a Curves’ trainer using the machines within the facility. During the workout Anderson notified the trainer that she began to feel pain in her neck, shoulder and arm, but finished her workout. She continued to feel the pain when she got home and pursued medical attention. As part of her prescribed medical treatment she was sent for a course a physical therapy. In June 2003 Anderson underwent a cervical discectomy, a procedure used to treat nerve or spinal cord compression. After her procedure Anderson sued Curves, claiming negligent acts during her workout. Anderson v. McOskar Enterprises, Inc., 712 NW 2d 796 (Minn. 2006).
Tort, one of the crucial subjects of study when analyzing common law jurisdictions. Tort, is an action which causes another person or party to suffer harm or loss []. The person who has committed a tortious act is called the tortfeasor while the person who suffered harm or loss from such act is called the injured party or the victim. Although crimes may be torts, torts may not be crimes [] simply because a tort may not have broken a law. In fact, one must understand that the key idea of tort is not to punish the tortfeasor(s) but rather to compensate the victim(s).
While the police officers have rights to investigate suspect, the duty of care of the officers to suspect exist and the officers were under a legal obligation to exercise care for Mr. Hill. ...
The first element to examine is that of possible benefit to society. In Swinney v Chief Constable of Northumbria Police Force , the claimant found information relating to a murder of a police officer. They reported it, but the file of the report given was stolen. The couple received violent threats after this occurred. In this case, a duty was established, it was done so in order to protect future informers, to ensure people will come forward. If no liability had been placed it would be detrimental, as informers would be less likely to come forward. This case is then distinguished into a type of negligence referred to as ‘direct action’ cases . It relates to deterrence, as well since it places this liability in order to protect informers and thereby to make sure this kind of negligence does not occur again from the police. It is a somewhat rare example where a duty of care is established. Another element of practical consideration is that of resources. The other main case for police negligence is Osman v Ferguson . In this case, a 14-year-old boy was being stalked by his schoolteacher. It came so to the point where the schoolteacher came to the claimant’s house and killed his father and injured the boy. The police had been called on several occasions, but failed to act before it went out of control. It had proximity and reasonable foreseeability however; it was
Police officers are faced each day with a vast array of situations with which they must deal. No two situations they encounter are ever the same, even when examines a large number of situations over an extended period of time. The officers are usually in the position of having to make decisions on how to handle a specific matter alone, or with little additional advice and without immediate supervision. This is the heart of police discretion. As we shall find, the exercise of discretion by police has benefits and problems associated with such exercise. The unfettered use of discretion can lead to the denial of citizen rights. Strategies that control the use of discretion are, therefore, very important. The benefits and problems of police discretion and controlling strategies are the focus of this essay.
There are situations where a person will be liable for failing to act. In many cases the is ni duty to ac but a person will be criminally liabke for an ommisiion because there is a legal duty to act. Examples of when a legal duty to act should take place is neglection of a child and the duty owed by the public officer. “Gibbins & Proctor, Rv (1918) CCA”, a man and his common law wife starved a 7 year old to death. As a parent your duty is to take care of your children regardless whether they are your biological children or not. The defendants will failed to look after the child and therefore liable for murder, even though the child wasn’t hers she was receiving money from the husband for food. This case a clear example as to how a failure in criminal law may amount to an unlawful act.
There is a strict distinction between acts and omissions in tort of negligence. “A person is often not bound to take positive action unless they have agreed to do so, and have been paid for doing so.” (Cane.2009; 73) The rule is a settled one and allows some exceptions only in extreme circumstances. The core idea can be summarized in “why pick on me” argument. This attitude was spectacularly demonstrated in a notoriously known psychological experiment “The Bystander effect” (Latané & Darley. 1968; 377-383). Through practical scenarios, psychologists have found that bystanders are more reluctant to intervene in emergency situations as the size of the group increases. Such acts of omission are hardly justifiable in moral sense, but find some legal support. “A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.” (L Esher Lievre v Gould [1893] 1 Q.B. 497) Definitely, when there is no sufficient proximity between the parties, a legal duty to take care cannot be lawfully exonerated and imposed, as illustrated in Palmer v Tees Health Authority [1999] All ER (D) 722). If it could, individuals would have been in the permanent state of over- responsibility for others, neglecting their own needs. Policy considerations in omission cases are not inspired by the parable of Good Samaritan ideas. Judges do favour individualism as it “permits the avoidance of vulnerability and requires self-sufficiency. “ (Hoffmaster.2006; 36)
In this case. Juveniles had escaped from the local penal institution and damaged the plaintiffs yacht. The plaintiffs claimed that the defendant owed them a duty of care because the juveniles where in their custody. The House of Lords held that the Home Office owed a duty of care to the plaintiff. It was the omission by the defendants. They failed to supervise the boys. It was alleged that the guards had been asleep at the time of the escape. This expanded the ‘neighbour principle’. The wrong was not actually committed the Home Office. It was committed by the juveniles which are a third
The Act allows negligence as the sole ground unlike common law which required the claimant to establish ‘fraud’ even if negligence existed. It is believed that the ‘d...
The rule of law, simply put, is a principle that no one is above the law. This means that there should be no leniency for a person because of peerage, sex, religion or financial standing. England and Wales do not have a written constitution therefore the Rule of Law, which along with the parliamentary Sovereignty was regarded by legal analyst A.C Dicey, as the pillars of the UK Constitution. The Rule of Law was said to be adopted as the “unwritten constitution of Great Britain”.
in criminal law and Beckett Ltd v. Lyons [1967] 1 All ER 833 the law
The dominant action in torts in negligence. According to Winfield and Jolowicz[ Winfield and Jolowicz on Tort, Ninth Edition.1971. p. 45], Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. Lord Wright [ Lochgelly Iron & Coal Co. V. Mc Mullan,