LAW OF TORT Flashcards
DEFINE NEGLIENCE
NEGLIENCE DEFINE BY THE WINFIELD AS “THE BREACH OF LEGAL DUTY TO TAKE CARE WHICH RESULT DAMAGE TO THE PLAINTIFF UNDESIRABLE THE DEFENDANT.”
IN THE CASE LONGHELLY IRON AND COAL V. M.MULLAN (1934) LORD WRIGHT STATED:
“NEGLIENCE DEFINE BY MORE THAN HEEDLESS OR CARELESS CONDUCT.. IT PROPERLY CONNOTES THE COMPLEX CONCEPT OF THE DUTY, BREACH AND DAMAGES. THEREBY SUFFERED BY THE PERSON TO THE WHOM THE DUTY WAS OWNING.”
PRINCIPAL ELEMENTS OF NEGLIENCE
1) duty to take care
A DUTY OF CARE OR AN EXISTING LEGAL DUTY PART OF THE DEFENDANT AS FALLS WITHIN THE SCOPE OF THE DUTY
INTRO
A PERSON ONLY LIABLE TO NEGLIENCE IF HE UNDER THE LEGAL OF THE DUTY OF CARE OR MAY ARISE IN CONTRACT, IN TORT OR OWNED BY PROFESSIONAL TO THE CLIENT.
IN THE CASE DONOGHUE V. STEVENSON (1932)
A MANUFACTURER OF GINGER BEER HAD SOLD TO A RETAILER BEER IN A OPAQUE BOTTLE. THE RETAILER THEN RESOLD TO A, WHO TREATED HER FRIENDS TO ITS CONTENTS.
THE BEER BOTTLE CONTAINED DECOMPOSED REMAIN OF SNAILS WHO FOUND ITS WAY IN THE BOTTLE AT THE FACTORY. A’s FRIEND ALLEGATED THAT SHE BECAME CONSEQUENCE ILL AND SUE THE MANUFACTURER FOR NEGLIGENCE.
THE COURT HELD THAT ALTHOUGH THERE IS NO CONTRACTUAL DUTY ON THE PART OF THE MANUFACTURER TOWARDS AS FRIEND, THE MANUFACTURER OWNED A DUTY TO TAKE CARE A BOTTLE DID NOT CONTAIN OBXIOUS MATTER AND HE LIABLE IF THE DUTY WAS BROKEN. HENCE THE PLAINTIFF CAN CLAIM THE DAMAGE AGAINST MANUFACTURER IN NEGLIGENCE.
PRINCIPAL ELEMENTS OF NEGLIGENCE
2) breach of the duty to take care
IF IT IS ESTABLISHED THAT THE PLAINTIFF OWES A DUTY TO TAKE CARE THE NEXT QUESTION IS
“WHETHER THE DEFENDANT HAS A BREACH THE DUTY OF CARE?”
THE BREACH OCCURS WHEN THE DEFENDANT DOES SOMETHING THAT PERCEIVED TO BE BELOW THAN MINIMUM STANDARD OF CARE REQUIRED OF HIM, WHICH IS MEASURED THROUGH THE STANDARD OF REASONABLE MAN. A REASONABLE MAN MEAN ORDINARY MAN WHO HAS NO PARTICULLAR SKILL POSSESSED BY LAWYER OR SURGEON UNLESS HE IS ACTUALLY ONE.
3 ELEMENT OF NEGLIGENCE (THE BREACH OF THE DUTY)
I) MAGNITUDE OF THE RISK
THERE ARE TWO ELEMENT WHICH IS LIKELIHOOD THAT INJURY WILL BE INCURRED AND SERIOUSNESS OF THE INJURY THAT IS RISKED
IN THE CASE OF PARIS V STEPNEY BOROUGH 1951 IN ASSESSING MAGNITUDE OF THE RISK, IT IS IMPORTANT TO NOTES THAT THE DUTY OF CARE IS OWNED TO THE PLAINTIFF HIMSELF AND IF THE PLAINTIFF HAD SUFFER SOME DISABILITIES, THE DEFENDANT SHOULD KNOWN. IT WILL INCREASE THE MAGNITUDE OF THE RISK THAT DISABILITIES MUST BE CONSIDERED.
II) THE IMPORTANCE OF OBJECT TO BE ATTAIN
IN THE CASE WATT V. HERTFORDSHINE COUNTRY COUNCIL (1954)
WATT, A FIREMAN WHO HAD INJURED BECAUSE A MOVEMENT OF HEAVY JACK WHILE TRAVELLING WITH LORRY NOT SPECIAL EQUIPED FOR CARRYING IT. A WOMEN WHO TRAPPED UNDER HEAVY VEHICLE URGENTLY SAVED HER LIFE. COURT HELD THAT FIRE AUTHORITIES IS NOT NEGLIENT BCS THE RISK HE TAKE TO SAVE WOMEN LIFE .
III) THE PRACTICABILITY OF PRECAUTION
IN THE CASE OF LATIMER V. AEC LTD 1954 , THE FACTORY FLOOR BECOME SLIPPERY AFTER FLOOD, THE OCCUPIER TRY SO HARD TO VLEAN THE EFFECT OF SLIPPER FLOOR. NEVERTHELESS THE PLAINTIFF SLIPPED INTO IT AND SOUGHT TO CLOSE THE FACTORY. THE COURT HELD THAT THE INJURED WAS NOT SO GREAT TO JUTIFY, MUCH LESS TO CLOSE DOWN THE FACTORY.
PRINCIPAL ELEMENTS OF NEGLIGENCE
3) remoteness of damage
WHETHER DAMAGE MAY BE COVERED FOR PARTICULAR ITEMS W THE PLAINTIFF LOSSES. THERE IS TWO TYPES
INTENDED CONSEQUENCES
SOMEONE DO SOMETHING PURPOSELY CAUSED HARMED MAY RESPONSIBLE MORE THAN WHAT THEY DID
UNINTENDED CONSEQUENCES
CAUSED THE ACCIDENT TYPICALLY BECAUSE OF THERY CARELESSNESS
