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Law Notes Torts Law Notes

General Duty Of Care Notes

Updated General Duty Of Care Notes

Torts Law Notes

Torts Law

Approximately 121 pages

These are comprehensive notes that include explanations from the lecturer. The case law for torts has always been old and these notes should still be relevant....

The following is a more accessible plain text extract of the PDF sample above, taken from our Torts Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Class two- The General duty of care:

In class notes:

Civil Liability Act- outline changes

  • Caps on compensation – Get 15% of the most extreme case. Reduce lawyer’s willingness to take on a case- no money to be gained from it (hit suburban lawyers). Statutes are compromises. They reveal underlying political ideologies.

  • Modifications to liability: protections and exclusions:

    • Volunteers. They are protected from liability. Politicians want more volunteers.

    • Professionals. They often deal with life and death decisions. They should not have to also worry about liability.

    • Self defence.

    • Under influence of drugs/alcohol.

    • Committing serious offence.

  • Apology- not admission of fault. Is it baseless without this? No legal duty in terms of compensation.

  • Breach of duty and causation.

Civil Liability Act- Outline: Declaratory (how they want the law to be)

  • Inherent risks (materialisation)

  • Standard of care in contributory negligence.

  • Liability of public authorities. Too many areas where local governments have liability.

Civil Liability Act- Outline: future:

  • Exemplary or aggravated damages caused by negligence are abolished.

  • ‘Good Samaritans’ are protected. We want people to look after each other in society.

  • Contributory negligence may defeat claim for negligence.

The beginning of negligence or action on the case (failure to exercise reasonable care and skill):

The three elements:

  • Cause of action: the defendant must have owed the plaintiff a duty of care.

  • The duty must have been breached.

  • The breach must have caused damage to the plaintiff.

Historical significance:

  • Today a duty of care must be shown to exist

  • A legal formula decides the particular duty situation. It is well established for example that drivers owe a duty of care to pedestrians.

  • Before the Donahue v Stevenson case there was no duty of care arising out of negligence. This case set a pattern for it. In the past the situation was governed by privity of contract.

Page 160

Donoghue v Stevenson (1932) - introduced a duty of care to third persons in negligence.

Facts:

  • Donoghue suffered severe gastro enteritis when she found a snail in her ginger beer.

  • The bottle was opaque and Donoghue had no reason to suspect it contained a snail.

  • Stevenson was the manufacturer.

Remedy sought:

  • Donoghue wanted damages.

Prior proceedings:

  • Donoghue lost in the Scotland Court of Session. She appealed to the House of Lords.

Arguments of parties:

  • Stevenson argued that Donoghue was a third party and is unable to sue because of privity of contract.

  • Donoghue argued that the drink was sold under Stevenson’s name and it was his duty to provide a system that prevented snails getting into his ginger beer bottles and to provide an efficient system of inspection of the bottles.

Legal issue:

  • Is a manufacturer obligated to take reasonable care in avoiding acts that one would reasonably foresee would injure their customers?

  • If there is no duty, when does a duty of care arise?

Outcome:

  • Donoghue won 2:3. Lord Buckmaster and Lord Tomlin dissented.

Legal reasoning:

  • Lord Atkin reasoned that Stevenson had a duty of care because every person should have a right to demand relief for wrongdoing. It is a general public sentiment that a wrongdoer must pay. It is a form of “love your neighbour” but applied in the law. A person must contemplate how their actions will affect their neighbour. Heaven v Pender established that under certain circumstances, one man may owe a duty to another even though there is no contact between them. It would be a grave defect in the law if this were not so.

There is a duty of care? In class

  • Review particular circumstances.

  • General principle. More wrongdoing. Morally if there is a wrong doing someone should be held accountable.

  • Limit: reasonable care not to injure your neighbour. Lord Atkin said, “reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.

  • Who is my neighbour? “persons who are closely and directly affected by my act that I ought reasonably to ought reasonably have them in contemplation as being so affected” Heaven v Pender.

  • Proximate relationship. Not just chance.

  • Apply law- If you cannot find a remedy there is something wrong with the system and this must be addressed.

  • Analogy to other products: household items- In a civilised system there must be a remedy for this.

  • Dangerous things and distinguish...

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