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Negligence_Elements

Group of juvenile offenders where taken on an

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Group of juvenile offenders where taken on an excursion to the Yacht club. The offenders made their way to the jetty and stole a yacht. If RF was the only test then, a D.o.C could not exists, however the proximity approach helped solve the problem here and a D.o.C was established. Gala v Preston – Proximity approach shown not to create a Duty where one clearly exists. Youths crashed a car. D was the insurer of the car. In this case proximity was made out but there was no D.o.C. This lead to the demise of the proximity approach and later, the adopting of the salient features approach used today. Criticisms of the proximity requirement: “Proximity” is too vague a concept to be useful in determining whether a duty of care exists Proximity is not present in every case in which a duty of care is found; nor is it absent in every case in which a duty of care is not found 7
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No Duty Situations – Policy considerations Barristers cannot be held liable for work done in court. It applies to work done in court, whether by a barrister or a solicitor It does not apply to work done out of court, unless that work can fairly be said to affect the way a case will be conducted in court Giannnarelli v Wraith Immunity upheld. Reasoning: 1. Liability would interfere with responsibility to the court. 2. It would provide losing parties with a way of impugning judicial decisions which go against them. D’Orta-Ekenaike The immunity is based on the need for finality in the judicial system The test in Giannarelli should be upheld Dissenter (Kirby) The immunity should be overturned because: it has not proved necessary in other jurisdictions; it treats lawyers differently from other professionals; and most lawyers carry on private practice (cf discharging a governmental function) Armed Forces No duty of care is owed during operations against the enemy in wartime However, a duty of care is owed with regard to other activities, even in times of war Parents A parent owes her child a duty of care regarding any positive act she performs. However, the duty does not extend to omissions , even if the failure to act leads to the child sustaining injury. 8
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Element 2 - Breach of Duty BREACH OF DUTY The task of determining whether a duty of care has been breached involves a comparison of the defendant’s conduct with the ‘standard of care’ required by the duty. Whenever the defendant’s conduct falls below the required standard of care, the duty is seen to be breached. Conversely, when the defendant’s conduct meets or exceeds the standard imposed by law, no liability arises under the tort of negligence, irrespective of the existence of harm caused to the plaintiff. Thus, in deciding whether a duty of care has been breached, it is first necessary to ascertain the content of the duty (assuming, of course, the existence of a duty of care has already been established: see Section 1 above). Breach of Duty is determined by ascertaining whether the D has fallen short of the SOC ( Standard of
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