Business & Company Law

Negligence is a tort and an element of tort; it is the most important ever expanding area of law. Negligence can be described as a tort involving the branch of legal duty of care causing loss by a failure to the party to whom the duty is owed. So what is a tort? A tort is simply a civil wrong, "the law of tort is concerned with a description of those instances of conduct which the court primarily have rules should be prohibited and penalised" (IPA text, 2002). Tort is based on faults, most torts are committed by carelessness (negligence) rather than intentionally there can however be liability for an omission.

The is no definite definition for the law of negligence this is part of the reason for its ever increasing nature, For example if a person unintentionally but negligibly commit a wrongful act to another(plaintiff) which cause a form of loss to the plaintiff, the person (defendant) will be held at fault in the court and the remedy will be damages. There are four important elements of negligence a plaintiff has to prove to succeed in an action of negligence: 1. The Plaintiff must prove the defendant owe him a duty of care 2. The Plaintiff must prove that there was a breach of duty of care by the defendant 3. The Plaintiff must Prove that he suffer injury, damage and loss 4. The Plaintiff must prove that the damage and loss suffered is as a result of the alleged breach of the duty of care by the defendant.

The law of Negligence can be seen to be expanding in life daily activities, law of negligence is expanding to areas such as supplying of services (Breach of duty of care), professional negligence (e.g. medical negligent case), health and safety, standard of care, duty of care involving third parties, occupiers liability, product liability, economic loss, nervous shock, civil liability and much more. A duty of care was originally established by applying LORD Atkins's "Neighbour" Test From: Donoghue V Stevenson (1932) in this case, a woman became ill after dinking a an opaque bottle of ginger beer. The woman sued the company because she claim the rotten snail in the bottle made her sick but the company refuse responsibility because the lady has no contract with the company, her friend bought the bear. How ever, in the decision, lord Atkins set out the principle, known as neighbour Principle.

Duty of care in retailing business Case: Grant V Australian Knitting Mills, 1963 Grant contacted dermatitis as a result of a chemical bleach contained in an under pant he purchase from AKM. AKM refuse to accept responsibility on the basis that Grant should have washed the new under pant before wearing it. Held: washing a new undergarment before use is not a normal precaution, so AKM was liable.

In this case "neighbour principle" is used "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour" (Irish business 1990) a neighbour in law is person closely and directly affected as a result of negligence hence AKM is owe Grant a Duty of care and a breach of duty of care has occurred which resulted in Grant's contacting dermatitis "Injury and casual connection". This case shows extent the law of negligence can be exercised.

Duty of care involving third parties More so the case of Home Office V Dorset Yacht company, 1970 shows that if a defendant is in charge of third parties the defendant has a duty of care. Case: Home Office V Dorset Yacht Company, 1970 Some boys escaped from a Borstal institute, in the process of escaping, they damaged DY Company's Property. The home Office was responsible for the lack of care by the guards. Held: The Home office is liable for its Staff negligence and owe a duty of care to DY's Property as it could be foreseen might damage if the boys escape.

This case shows the law of negligence can be enforced in a case of third party if the defendant is in control of the third party also the fact that the home office can be sued for such act shows how far the law is expanding. Medical Negligence Law of negligence is continuously increasing in professional area, the case of Daniels V Heskin (1954) is an example of medical negligence, and it shows that professionals may not be excuse from negligence. The case proves that a doctor is in breach of duty of care if he refuse to use the skill he possess when necessary but if the doctor will not be liable for error of unreasonable judgement. Hence medical doctors are responsible for development of reasonable up to date skills in their area of medicine

Duty of care involving Trespassers It is amazing that occupiers can owe a duty of care to trespassers; the case of McNamara V ESB proves that the law of negligence is ever expanding. Case: McNamara V ESB 1975 A young boy aged eleven was injured by climbing over a wire fence into an electricity transformer station Held: the judges agreed that an occupier owes a duty to trespassers whom he can reasonably foresee and the duty is to take such reasonable care the circumstances demand.

In Conclusion since the case of Donoghue V Stevenson (1932), there has being an enormous increase in negligence claims, one of the recent in Ireland is the case of Glencar Exploration Ltd, V Mayo County Council (2002) ILRM 481 the local authority granted exploration rights for gold in county mayo to the plaintiff. The defendant decide not to grant mining right in mayo anymore after some explorations has being carried out.

Held: The supreme court Noted in this case that it is not desirable that Liability in negligence should be established for economic loss in the absence of a liability in contract also that the decision is unreasonable. The plaintiff had no clear contract to the other than in negligence against the defendant. The supreme court concluded that the court should find liability where it " is Just and reasonable" to do so. Negligence is definitely an ever expanding area of law, there is hardly no area in life that the law has not being exercised : form professionals, authorities, day- to- day services, and among family and friends.

References

Encarta (r) World English Dictionary (c) & (P) 1998-2005 Microsoft Corporation. All rights reserved. Institute of public administration (2002) Business and company law text, stage 2, undergraduate program. Irish Business (1990), BPP publishing, Chapter 33. Case references Irish business 1990 McNamara V ESB 1975 Daniels V Heskin (1954) Grant V Australian Knitting Mills, 1963 Home Office V Dorset Yacht Company, 1970