Journal of Tort
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Negligence: Duty of Care and Standard of Care
TANGGUNGJAWAB DAN PIAWAIAN PENJAGAAN DAN RAWATAN Prof Dr Puteri Nemie Jahn Kassim Civil Law Department Ahmad Ibrahim Kulliyyah of Laws International Islamic University Malaysia MEDICAL NEGLIGENCE: DUTY OF CARE AND STANDARD OF CARE Prof Dr Puteri Nemie Jahn Kassim Civil Law Department Ahmad Ibrahim Kulliyyah of Laws International Islamic University Malaysia Negligence is the most important area in modern tort law. It covers nearly half of any textbook. The tort of negligence protects various interests such as interests in physical integrity, interest in property and economic interests. Definition of “negligence” defined by Winfield as “the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.” In Loghelly Iron & Coal v M’Mullan [1934] - Lord Wright stated “Negligence means more than heedless or careless conduct…it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.” Continuation… Prof. Fleming: Negligence is the conduct falling below the standard demanded for the protection of others against unreasonable risk of harm. Blyth v Birmingham Waterworks Co (1856) 11 Ex 781: Negligence is the omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Not All Errors are Negligent Medical negligence… Failure to meet the standard of practice of an average qualified doctor -
GRADUATE DIPLOMA in LAW 2020/21 Tort Introductory Reading
GRADUATE DIPLOMA IN LAW 2020/21 Tort Introductory Reading WHAT IS TORT? Tort is said to be about conflict of interests which lead to the infliction of losses. These conflicts may take many different forms. It is important to be able to identify what a tort is and to be able to identify which different torts may apply to different situations. Set out below are definitions of different torts OF TORT LAW followed by short scenarios. You should read the definitions and then think about whether any of the torts apply to any of the scenarios. Definitions NEGLIGENCE: A claim in negligence requires an injured party to establish that the defendant owed him a duty of care to protect him from the kind of harm suffered, that he was in breach of that duty, and that it was the defendant’s breach of duty which was found to be the cause of the claimant’s loss. PRIVATE NUISANCE: Unreasonable interference with a person’s use or enjoyment of land or some right over or in connection with it. ASSAULT: Any act of the defendant which directly and either intentionally or negligently causes the claimant immediately to apprehend a contact with his person. In all these and many other situations the law of tort governs the question of whether the injured party, the claimant (formerly, ‘the plaintiff’), may sue the party responsible for the injury, the defendant, to recover compensation for his loss, and, if so, how. Primarily, therefore, the law of tort is concerned with the provision of a remedy to persons who have been harmed by the conduct of others. -
Heaven V Pender (1883)
TOPIC 1: Negligence – Duty of Care General Principles Case: Heaven v Pender (1883) Facts: The defendant, the owner of a dry dock, entered into a contract with a shipowner to supply a stage supported by ropes that would be flung over the side of a ship while it was in the dock. Painters employed by an independent contractor used the stage to paint the ship. Whilst painting, one of the ropes gave way and one of the painters was injured. The ropes had been scorched before they were supplied by the defendant, who had failed to give reasonably careful attention to their condition. The injured painter sought to sue the defendant. However, he had no contract with the owner, so he sued in tort. Issue: - Did the defendant owe the injured painter a duty of care? Held: (Brett MR – minority): “Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary skill and avoid such danger”. Tort law should assume a broad view of this area. If any person with ordinary sense realises that if they did not exercise proper care and skill, damage could be occasioned to another or another‟s property from their actions, they should be held liable. Brett MR was part of the minority. -
LEVEL 6 - UNIT 13 – Law of Tort SUGGESTED ANSWERS – June 2014
LEVEL 6 - UNIT 13 – Law of Tort SUGGESTED ANSWERS – June 2014 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2015 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1(a) In the tort of negligence ‘duty of care’ is a legal duty to take reasonable care not to harm another. It is an essential element in establishing an action in negligence. Whilst it may be possible to demonstrate that harm has been suffered as the result of carelessness, it is not possible to establish liability unless the claimant can show he was owed a duty of care. ‘A man is not liable for negligence in the air. The liability only arises where there is a duty to take care and where failure in that duty has caused damage’ per Lord Russell, Bourhill v Young (1943). The role of this requirement is to limit potential claims. Its purpose is to draw a line between those kinds of carelessness and injury for which the court considers compensation should be awarded and those for which it should not. -
Negligence by Words
Negligence by Words G. H. L. FRIDMAN* Adelaide, 4ustraha 3 Before and after the decision in Candler v. Crane, Christmas & Co.' the topic of liability for negligently made iris-statements of fact produced a number of learned articles.' In the Supreme Court of Canada in Guav v. Sun Publishing Co.' that decision helped to pro- duce (but not entirely cause) judicial dissent. There the plaintiff suffered nervous shock as a result of reading a mis-statement of fact negligently inserted in the defendants' newspaper. She failed to recover damages, although a minority of the Supreme Court thought she should have done. But the reasons given by themajority for rejecting her claim did not coincide. Some thought that the tort of negligence could never be committed merely by word of mouth. Some were not so positive, but considered that in the in- stant case there was no duty of care owed to the plaintiff, or that damage by the plaintiff could not be traced back to the defendants' carelessness. The problem of negligence by words was considerably complicated by the issue of liability for causing nervous shock, which is, itself, still a subject ofjudicial and academic dispute.4 In view of this decision, it is submitted, there is some justifica- tion for reconsidering whether it is open to courts administering English law to recognize a duty of care not to make statements *G. H. L. Fridman, M.A., B.C.L., Lecturer in Law in the University of Adelaide . '[195112 K.B. 164. a Paton, Liability in Tort for Negligent Statements (1947), 25 Can. -
Donoghue V Stevenson [1932] UKHL 100 (26 May 1932)
Donoghue v Stevenson [1932] UKHL 100 (26 May 1932) http://www.bailii.org/uk/cases/UKHL/1932/100.html [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Donoghue v Stevenson [1932] UKHL 100 (26 May 1932) URL: http://www.bailii.org/uk/cases/UKHL/1932/100.html Cite as: 1932 SC (HL) 31, [1931] UKHL 3, [1932] UKHL 100, [1932] AC 562 [New search] [Help] Die Jovis, 26° Maii, 1932. Parliamentary Archives, HL/PO/JU/4/3/873 M'ALISTER or DONOGHUE (Pauper) Appellant v. STEVENSON. Respondent ------------- Lords Present Lord Buckmaster Lord Atkin Lord Tomlin Lord Thankerton Lord Macmillan Judgment -------- Lord Buckmaster (read by Lord Tomlin) MY LORDS, The facts of this case are simple. On August 26th, 1928, the Appellant drank a bottle of ginger beer, manufactured by the Respondent, which a friend had bought from a retailer and given to her. The bottle contained the decomposed remains of a snail which were not and could not be detected until the greater part of the contents of the bottle had been consumed. As a result she alleged and, at this stage her allegations must be accepted as true, that she suffered from shock and severe gastro enteritis. She accordingly instituted the proceedings against the manufacturers which have given rise to this appeal. The foundation of her case is that the Respondent, as the manufacturers of an article intended for consumption and contained in a receptacle which prevented inspection owed a duty to her as consumer of the article to take care that there was no noxious element in the goods, that they neglected such duty and are consequently liable for any damage caused by such neglect. -
Volume 41(3).Indb
THE HISTORICAL FOUNDATIONS OF THE DUTY OF CARE JAMES C PLUNKETT* The duty of care serves a valuable function in the law of negligence: it specifi es when damage caused by another’s carelessness becomes actionable. This article explores how this valuable function, central to the analysis of liability for negligence, came to be served by the idea of a ‘duty of care’. The article fi rst traces the evolution of the duty of care from its earliest beginnings to the point at which it became fi xed as an element of the developing action for negligence. The article then explores the judiciary’s development and articulation of the duty concept. In particular, it examines how the courts developed tests for the scope and content of a duty, how it came to be a duty of care, and how the existence of such a duty came to be based on the idea of foreseeability. I INTRODUCTION The Romans never knew of a ‘duty of care’, nor would any such concept be familiar to modern Continental lawyers.1 Within the common law, however, the duty of care plays an important role. Indeed, the presence or absence of a duty of care determines the outcome of many actions for negligence; has been, and continues to be, the subject of extensive judicial analysis in appellate courts; is frequently devoted numerous chapters in tort law textbooks, whilst other torts are rarely assigned more than one;2 and, for much of the last century, has been the subject of considerable academic discourse, being central to, for example, * DPhil Candidate, Christ Church, University of Oxford.