(A) What action or actions in tort may the commercial prawn trawlers claim against Megabucks Ltd?
Issue: Does Megabucks Ltd owe duty of care , yes they owe duty of care because of their ‘negligence’ the commercial prawn trawlers were unable to fish in the bay for 12months. The commercial prawn trawlers can certainly claim the damages from the Megabucks Ltd who has failed to perform their duty of care. To be liable for negligence to another person, a person, a person must owe a legal duty of care to that other person, One explanation is that a duty of care means a duty to take reasonable care or to exercise reasonable skill( both duties) ( The legal meaning of negligence is not always the same as the ordinary meaning of negligence. In the present Megabucks case they have failed to take reasonable care for the removal of debris which has caused damage to the commercial prawn trawlers fishing gear and which led them to stay away from fishing for 12months. Tort law provides legal remedies for damage caused by negligence: " negligence means failure to exercise reasonable care".
Negligence is the tort which now dominates modern tort law after the successful test case of Donoghue V Stevenson in 1932 involving the plaintiff getting sick after consuming a contaminated drink (because of snail in the bottle).
Negligence was established in 1932 in the decision of Donoghue v Stevenson, negligence has become by far the most important area of tort law. It is capable of almost infinite expansion and adaptation. The tort of negligence protects the person, property and economic interests from damage caused by another person not taking reasonable care. Case Law Donoghue V Stevenson: This is the case which set out the liability of a manufacturer in the tort of negligence to the ultimate consumer of its product where there was no contract between them. This decision changed the law as it then stood, and it laid the foundations for the whole of the modern law of negligence Case Example: On 26 August 1928, Mrs May Donoghue, a shop assistant from Glasgow, and a friend stopped at Mr Francis Minchella's Wellmeadow cafe in Paisley, a town 20 Kilometres from Glasgow. It was Mrs Donoghue's friend who ordered ice cream and ginger beer for her, it was Mr Minchella who poured the drink with decomposed snail into the glass for Mrs Donoghue.
Mrs. Donoghue who suffered severe shock, and later gastroenteritis, mental depression and loss of wages following time off work, sued the defendant David Stevenson, Aerated Water Manufacturer of paisley, plus interest as damages and costs, alleging negligence. Mr Stevenson's defence was that no reasonable cause of action was disclosed, ie that no law existed to support the plaintiff's claim.
Rule : So it is clear that Megabucks Ltd owe duty of care to commercial prawn trawlers. Lets see when there is a duty of care? what are the pre- requisites? what are the salient features of a duty of care
There are three prerequisites for an action in negligence which are
Duty of care, Breach of the duty of care and Damage.
A duty of care: this is a duty owed by one person to another because of the relationship between them which might cause injury.
A duty of care is a multi factor concept. It arises from the following important features (sometimes called salient features") which when combined make up a sufficiently close relationship to give rise to a duty of care.
1. Reasonable foreseeability- but not only foreseeability
Foreseeability alone is not sufficient to give rise to a duty of care " The true question in each case in whether the particular defendant owed to the particular plaintiff a duty of care having the scope which is contended for, and whether he was in breach of that duty with consequent loss to the plaintiff." 2. Vulnerability of the...