Duty of care Analysis Paper Example

“Tort”norman-french language –means mischief and wrong Comes from latin- tortus – means crooked, wrung and twisted. Sir John Salmon – Tort: a civil wrong for which the remedy is a common law action for unliqudated damages, and which is not exclusively the breach of contract or trust or other equitable obligation Sir Percy henry Winfield- tort – the breach of duty affixed by the law, where the duty is one towards the person generally and its breach is redressible by action of damages Person commits tort = tort-feasor/wrongdoer Wrongdoing – tortious act.

Injured part – can claim unliquidated damages eg. Compensation Damages – not specified – decided by court Tort comprises of following features: * Tort – non-contractual civil wrongdoing or omission * The wrongful act or omission injured the interest /rights of other party * Affected. injured party – rights to claim for unliquidated damages Torts divided into 2 classes 1. Unintentional torts – negligence, strict liability 2. Intentional torts- trespass, defamation Negligence -Failure of exercise care -harm caused by carelessness, not intentional harm Definition – by Professor Percy Henry Winfield:

Negligence: the breach of legal duty – to take care, which result in damage, undesirable by the defendant to the plaintiff. <3 Lochgelly Iron and Coal Co v. Mcmillan: neg – more than careless and heedless conduct. It implies the complex concept of breach, duty and damage. Suffered by the person to whome the duty is showing. Negigence – 3 elements – must be proved by the affected person 1. There is a legal duty of care owed by the tort-feasor to the affected person 2. There is a breach of legal duty by tort-feasor 3. The breach of duty brings damage or injury to the affected person -Legal duty of care.

A person is only liable when he owes a duty of care to the affected person. Heaven v pender: Duty of care exists in normal circumstances whereby if one does not take the precaution, the other party will be injured or damaged. To determine the existence of duty of care – Neighbour principle – Lord Atkin- Donohue v Stevenson Rule- have to love your neighbour – must not injure your neighbour. Who is neighbour? Neighbour is person who is closely and directly affected by our act that we have to keep them in contemplation 2 requirements on “legal” neighbour: 1.

Reasonable foreseeability test If the damage to the plan is foreseeable, then there is a duty of care on defendant “foresight of a reasonable man” – would a reasonable man who is in the same circumstances as the defendant, foreseea that his conduct would affect/injure the plantiff. If yes, then there is a legal duty of care owed by the tort-feasor -doesn’t depend on the closeness. 2 persons – may be close – but no duty of care – one may not know the presence of another Bourhill v young 2. Proximity test The closeness of the parties Kerajaan Malaysia v. Cheah Fong and Ors.

-Breach of duty Have to see if the care that has been taken is reasonable or not – must take reasonable steps in performing duty of care Standard of care: Reasonable man test * To decide whether there is a breach of contract of a reasonable man Reasonable man – ordinary man – not perfect A professional person – duty – greater Reasonable man test – ques: would a reasonable man in the same circumstance w the defendant act the same way? Courts – determine whether the defendant’s conduct amounts to the breach of required standard of care: * Magnitude of risk.

Defendant is required to take into account the likelihood of harm and the potential severity of the harm Bolton v stone * Importamce of the object to be obtained (utility of the defendant’s conduct) In emergencies, the defendant needs to take an act which later will turn into negligent act, the court will take into account the emergency of the situation Watt v hardfordshire county council Daborn v bath tramways ltd * Practicability of precautions All precautions undertaken by the def will be taken into account in determining the reasonableness of the defendant’s conduct Latimer v AEC Ltd.