5. NEGLIGENCE.ppt - NEGLIGENCE Definition the breach of a legal duty to take care which results in damage to the plaintiff undesired by the defendant

5. NEGLIGENCE.ppt - NEGLIGENCE Definition the breach of a...

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NEGLIGENCE
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Definition : the breach of a legal duty to take care which results in damage to the plaintiff undesired by the defendant Elements of negligence : 1. a duty of care owed by the defendant to the plaintiff 2. breach of duty of care by the defendant 3. consequential damage to the plaintiff
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Definition of duty of care : an obligation recognised by law to avoid conduct fraught with unreasonable risk of danger to others Duty in the tort of negligence means legal duty imposed by the law not moral or social duty The duty must arise out of some relation or some proximity between the parties; driver and road user, manufacturer and consumer, builder and buyer, lawyer and client, doctor and patient etc Fraught with = full of
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The primary test or principle used to determine the existence of a duty of care is the famous “ neighbour principle This principle was laid down in the landmark case of Donoghue v Stevenson (1932)
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Facts : The defendant, a ginger beer manufacturer, had sold ginger beer to a retailer. The ginger beer bottles were opaque. A bought a bottle and entertained her friend, the plaintiff, who drank the ginger beer. When A refilled the glass, along with the ginger beer came out the decomposed remains of a snail. The plaintiff suffered shock and was severely ill as a consequence. The plaintiff sued the manufacturer and claimed that the manufacturer had a duty in the course of his business to prevent snails from entering his ginger beer bottles and further that the defendant had a duty to ensure that all empty bottles were carefully inspected before they were filled with ginger beer.
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Issue : whether the defendant owed such duty to the plaintiff Held (House of Lords) : the test to determine the existence or otherwise of such a duty was whether the plaintiff was the “neighbour” of the defendant
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The “neighbour principle” was formulated by Lord Atkin as follows : The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question “who is my neighbour?” receives a restricted reply
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You must take reasonable care to avoid acts or omission 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 my contemplation as being so affected when I am directing my mind to the acts or omission which are called in question
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Applying this neighbour principle the court held the defendant liable Donoghue v Stevenson created a new category of duty, owed by the manufacturer to the consumer Before Donoghue v Stevenson the courts would insist that there was a pre existing contractual relationship between the parties before a duty of care could arise, not anymore after Donoghue v Stevenson
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The neighbour principle is an objective test ie the court will ask the hypothetical question : would a
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