Duty of Care

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  • Topic: Negligence, Duty of care, Tort
  • Pages : 95 (33459 words )
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  • Published : February 20, 2012
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Duty of Care: GELERAL
Week 2::Seminar 2
This concept is based on three proof of elements, its ingredients are – A legal Duty of D towards the C to exercise care in such conduct of D as falls within the scope of the duty, Breach of that Duty means failure to come up to the standard required by law & Consequential damage to C which can be attributed to D’s conduct. Duty of Care General: Duty is the primary control device which allows the courts to keep liability for negligence within what they regard as acceptable limits and the controversies which have centered around the criteria for the exercise of a duty reflect differences of opinion as to the proper ambit of liability for negligence. Before Donoghue v Stevenson, there was no liability for negligence in a case where there is no special relationship between parties. Because in Case of Assault or Battery or Defamation where someone has some certain restrictions that the D must not do by the law. But in a case of Pure negligence it was uncertain, so the court used to impose duties only where D & C had some kind of relations such as relation with a Doctor to his patient or a Lawyer to his client and so on. In this sense the Setevenson case was unique because in that case X bought Beer for his friend from a Shop and while drinking that his friend Y found that there was a snail and Y became seriously ill. The question to the court was as there was no relation existed between the Manufacturer and Y how they could impose a duty in such a situation. Furthermore because of the principle of Privity Y could not sue the Shop hence she had no contractual relations with the shop. However the House of Lords by majority discovered that there was a duty. And how it worked we come know form the dicta of Lord Atkin. His Lordship stated that, manufacturers has a duty because Y was neighbor by law of the manufacturer, and everyone has duty by law toward their neighbors not to harm them. Court said one must not injured or make any harm of his neighbor. Then explained how they were neighbours that, the Neighbour Principle states that you have a duty of care to ensure that you take reasonable care to avoid acts or omissions which you can reasonably foresee would injure your neighbour. The explanation of neighbor given by Lord Atkins is someone who is closely and directly affected by your actions which you could reasonably foresee would cause them injury, and thus they are neighbours. But this was only one scenario; debate was to find a general principle. A general principle is that can be used in any case where court need to impose a duty. But it is said that courts do not decide academic issues but the disputes between the parties. Here now we will follow the development of this aspect of law by a series of cases. In Home Office v Dorset Yacht, Lord Reid had suggested that the time had come to regard the neighbor principle laid down in Stevenson as applicable in all cases where there is no justification or valid explanation for its exclusion. This suggestion was taken by HoL in Anns v Merton London Borough, Lord Wilberforce said the matter should be approached in two stages , 1st whether there was sufficient degree of proximity of relationship or neighbourhood that it should be in D’s reasonable contemplation that his carelessness may cause harm to the C. 2ndly it is necessary to consider whether there are any other consideration which which ought to negative or reduce the duty. Commentary on ANNS: it is really appreciable that Lord Wilberforce was doing his job to create a precedent and a declaration of a general principle. But what he did can be criticized in many ways. He did not gave any exact definition of the proximity, if proximity simply means closeness then how much closeness is required, because someone is that much close to another that much they actually far away. The second point can be made here what he did at the second stage was simply cannot be a pragmatic of...
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