8 Key excerpts on "Negligence"

• 

  eBook - ePub

  Q&A Business Law

  • Janice Denoncourt(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  8 Consumer Law and the Tort of Negligence

  Introduction

  Under the tort of Negligence everyone, including business people, owes a duty to other people in society not to act unreasonably and thereby cause them harm. If a person, or a legal person such as a company, causes harm to another by Negligence, the injured person (the claimant) can recover compensation from the one who caused the harm (the defendant). A tort is a civil wrong, which is not a breach of contract. Liability in tort is not undertaken voluntarily. It is imposed by the courts, which have determined that certain types of behaviour will amount to a civil wrong, giving rise to tortious liability. Liability is based on fault, for example, dangerous driving causing an accident with another vehicle. The driver who drove dangerously without regard for the safety of others on the road is at fault and is therefore liable.

  A classic definition of Negligence states: ‘Negligence is the omission to do something which a reasonable man … would do, or doing something which a prudent and reasonable man … would not do.’ In a legal action for Negligence the claimant must prove three things:

  1. Duty of care;
  2. Breach of duty;
  3. Damage caused by the breach.

  First, in relation to the duty of care, the claimant must prove that the defendant owed him or her a duty of care. Generally, a duty of care is owed to anyone who one can reasonably foresee may be injured by one’s act or omission. This was established in the most famous case in English law: the ‘snail in the ginger-beer bottle case’,

  Donoghue v Stevenson (1932)

  .

  Second, in relation to breach of duty, the standard of care required by law is one of reasonableness. If the defendant has acted reasonably, there is no breach of duty. The standard of care varies according to the danger. The greater the risk of more serious injury, the higher the standard of care owed, and thus the more that has to be done in order to have acted reasonably:

  Latimer v AEC

  and

  Haley v LEB

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  eBook - ePub

  Business Law

  A Straightforward Guide

  • (Author)
  • 2014(Publication Date)
  • Straightforward Publishing Digital

    (Publisher)

  Ch.2 BUSINESS LAW-Negligence AND DUTY OF CARE-GENERAL In everyday parlance, Negligence means a failure to pay attention to what ought to be done or to take the required level of care. Whereas its everyday usage implies a state of mind, the tort of Negligence is concerned with the link between the defendant’s behaviour and the risk that should have been foreseen. Key definition of Negligence Negligence, as a tort, is generally defined as a breach of a duty of care. This duty of care is owed by one person to another. When damage is caused to a person, who then becomes a claimant, the type of damage has to be specified and also defined as actionable. The loss or damage can arise in a number of ways, arising through misfeasance or nonfeasance and can consist of personal injury, damage to property or can be pure economic loss. It can also consist of psychiatric damage. The duty of care-establishment of a duty Certain relationships between people, recognised by the law and developed by the law, give rise to a legal duty of care. The following are examples: •   Employer-employee •   Manufacturer to consumer •   Doctor-patient •   Solicitor-client Essentially, carelessness by one party which affects another gives rise, or can give rise, to legal action by the injured party. It is up to the claimant to prove that damage has been caused and that the case falls into a specific situation that gives rise to a duty of care. The neighbour principle Donoghue v Stevenson 1932 Outside of the categories of established duty, a duty of care will be determined on the basis of individual circumstances. One of the most prominent cases relating to Tort and Negligence is that of Donoghue v Stevenson (HL 1932) In this case, Mrs Donoghue and friend visited a café and Mrs Donoghue’s friend bought her a bottle of ginger beer. The bottle was made of opaque glass. When filling Mrs Donoghue’s glass the remains of a decomposed a snail floated out of the bottle

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  English Law

  • Gary Slapper, David Kelly(Authors)
  • 2009(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  The tort of Negligence

  7.1 Introduction

  Negligence is a tort. It is, however, necessary to define what is meant by ‘a tort’ before considering the essentials of Negligence. A tort is a wrongful act against an individual or body corporate or his, her or its property, which gives rise to a civil claim (usually for damages, although other remedies are available). Principally, liability is based on fault, although there are exceptions to this such as breach of statutory duty, vicarious liability and the tort established in Rylands v Fletcher (1865). The motive of the defendant in committing the tort is generally irrelevant.

  Negligence is the most important of all the torts, not only because an understanding of it is vital to the comprehension of other torts, such as employers’ and occupiers’ liability, but also because it is the one tort which is constantly developing in the light of social and economic change. This can be seen by reference to product liability, professional Negligence and economic loss, all of which were originally only compensated if there was in existence a valid contract; in other words, ‘no contract, no claim’. After a period of continual development in the scope and application of this tort, there are signs that the courts are beginning to be more cautious. They are aware of the economic implications for the public and private sectors if they continue to extend the scope of actions in Negligence. Whether this should be an issue for the courts is always open to debate, but if the courts are to be pragmatic, then they may have no choice but to be restrained in the current economic climate.

  A professional person, such as an auditor, accountant, lawyer or doctor, may find themself in a non-contractual relationship with another who will have little choice but to pursue a claim in Negligence if they are injured as a result of professional malpractice. Indeed, in order to cover potential claims in Negligence and contract, many professional bodies require, as part of membership approval and the issue of practising certificates, that their members take out insurance cover to meet the cost of potential claims (usually, a minimum amount of cover is stipulated for an individual claim). This is known as professional indemnity insurance.

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  Tort Law

  • Chris Turner(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  2 Negligence: basic elements

    2.1 Duty of care

  2.1.1  Negligence – origins and character

  1     The modern starting point is Lord Atkin’s judgment in

  Donoghue v Stevenson (1932)

  , which established Negligence as a separate tort – though its origins were in actions on the case.

  2     A new approach was needed, as no other action was available.

  3     The judgment contained five key elements.

           Negligence is a separate tort.

           Lack of privity of contract is irrelevant to mounting an action.

           Negligence is proved as a result of satisfying a three-part test:

             i)      there must be a duty of care owed by defendant to claimant;

            ii)     the duty is breached by the defendant falling below the appropriate standard of care;

           iii)    the defendant causes damage to the claimant that is not too remote a consequence of the breach.

        

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  Q&A Torts

  • Birju Kotecha(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  1 Negligence – Duty of Care Generally and Economic Loss INTRODUCTION

  Please note the first four chapters are all concerned primarily with the tort of common law Negligence. They are divided into chapters for the purpose of clarity with different areas emphasised. However as you will know by now the concepts of duty, breach, causation and the general defences all form key components of forming liability in the law of Negligence. Therefore the coverage of the answers will, to a greater or lesser degree, be duplicated in many of the first 14 questions in this book.

  Questions solely on duty of care, however, usually take the form of an essay, typically on the test for imposing a duty. It is important therefore that you are aware of the stages of its development. It is also vital to be thoroughly familiar with situations in which limits are placed on whether a duty of care will exist. This chapter will include coverage of such limitations that are found within the area of negligent misstatement and economic loss, through the form of three essay questions and two problem questions. The second chapter will consider limits posed on the existence of a duty of care when considering recovery for psychiatric injury, the liability of the emergency services as well as the policy implications of the ‘compensation culture’ phenomena.

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  Architect's Legal Pocket Book

  • Matthew Cousins(Author)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  5General principles of the law of tort

  GENERAL PRINCIPLES OF THE LAW OF TORT

  Key legislation

  • Compensation Act 2006
  • Consumer Protection Act 1987
  • Latent Defects Act 1986
  • Occupier’s Liability Act 1984
  • Limitation Act 1980
  • Civil Liability (Contribution) Act 1978
  • Health and Safety at Work etc. Act 1974
  • Civil Evidence Act 1968
  • Occupier’s Liability Act 1957
  • Law Reform (Contributory Negligence) Act 1945

  WHAT IS TORT?

  Tort is a civil wrong. The term “tort” derives from the Norman French word for “wrong”. Tort is concerned with the infringement of a right that results in a loss that gives rise to an action of damages. Where there is no direct contractual relationship between parties, tort can provide a remedy. Tort is separate from the law of contract. Tort covers a wide range of causes of action arising out of various aspects of everyday life, such as neighbour disputes, Negligence, trespass and injuries to the person. An architect normally owes a contractual duty and a concurrent duty in tort to the client and to third parties.1 The types of tort most relevant to architects are:

  • Negligence;
  • Nuisance;
  • Public nuisance;
  • Trespass.

  1 Henderson v Merrett Syndicates [1995] 2 AC 145 at 194.

  LIMITATION

  Key case

  • Oxford Architects Partnership v Cheltenham Ladies College 2

  2 [2006] EWHC 3156 (TCC).

  The law will not allow an action to remain in perpetuity. Under the Limitation Act 1980 claims for Negligence in tort in respect of physical damage to property must be commenced within six years from the date when the claimant suffers damage (section 2) or, if later, within three years from the date when the claimant first knew about the damage and certain material facts about it (section 14A). Under the Limitation Act 1980, claims for Negligence in tort in respect of personal injury or death must be commenced within three years from the date on which the cause of action accrued or, if later, the date of knowledge of the person injured (section 11(4)). This is subject to section 14B of the Limitation Act 1980 in which an action for damages for Negligence shall not be brought after the expiration of 15 years from the date (or, if more than one, from the last of the dates) on which there occurred any act or omission that is alleged to constitute Negligence.

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  eBook - ePub

  Making Sense of Risk Management

  A Workbook for Primary Care, Second Edition

  • Roy Lilley, Paul Lambden(Authors)
  • 2016(Publication Date)
  • CRC Press

    (Publisher)

  Clinical Negligence

  Clinical Negligence is a term that is used to mean poor clinical practice of an unacceptable standard. It is, in fact, alleged wrongdoing in the area of expertise of a practitioner and may be challenged by the injured party in civil law.

  Allegations of Negligence may be made against a GP and if made and refuted, can be judged in court.

  It is possible to raise proceedings against a GP under tort , which is interpersonal wrongdoing short of criminality. Action may also be taken under the law of contract , which deals with disputes arising from legally enforceable agreements.

  If a GP injures one of their patients and it is unquestionably their fault and they should have realised the risk when they did the treatment. A claim for Negligence against them is almost bound to succeed and the insurer will want to settle it as quickly and cheaply as possible.

  For Negligence to be demonstrated there is a requirement to be able to demonstrate that:

  • the practitioner owed a duty of care to the person making the claim
  • that the duty of care was breached
  • that an injury was suffered
  • that the injury was the direct result of the breach of the duty of care (known as causation)
  • that the injury was foreseeable.

  In addition, claims arising in private practice may be generated by alleged breach of contract as well as by Negligence.

  All of these elements must be demonstrable if the claimant is to succeed in an allegation of Negligence.

  A contract is an agreement creating obligations that are recognised and enforceable by law.

  These arrangements only apply to private practice. For work carried out under the NHS, no consideration passes between the NHS patient and the treatment practitioner or hospital.

  For there to be a contract there must be:

  • an offer
  • an acceptance
  • a consideration - the price (payment) for which the contract is bought.

  The duty of care

  The duty of care is the professional obligation that a GP has to a patient and is enshrined in common law. Such a duty exists from the point at which a patient is accepted explicitly or implicitly.

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  Beginning Business Law

  • Chris Monaghan(Author)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  Chapter 5

  Tort law

  LEARNING OBJECTIVES

  After reading this chapter, you should be able to:

  • understand the distinction between the obligations imposed by contract law and tort law;

  • appreciate how the law of torts affects businesses and how a business can be vicariously liable for the acts or omissions of its employees;

  • comprehend how liability will arise in the tort of Negligence and which types of loss will generally not be recoverable;

  • understand how different torts protect a business’s property, its reputation and the contracts that it enters into.

  INTRODUCTION

  In this chapter we will consider the impact of tort law or the law of torts on a business (Figure 5.1 ). A tort is a civil wrong and the common law and statute impose duties on individuals and businesses to avoid breaching a duty owed to another. Tort law is important as a business will be vicariously liable for the acts and omissions of its employees and will need to be aware that an employee who drives the company’s lorry negligently, or who posts offensive comments about a rival business on his employer’s website could result in the business being liable.

  How is tort law different from contract law?

  The difference between tort law and contract law is that in tort legal obligations arise irrespective of whether there is a contract between the claimant and defendant. This means that in contract law the parties will voluntarily contract and accept their obligations, whereas in tort the law imposes obligations that will be owed to others regardless of whether they have consented to them. That is not to say that the parties to a contract will have complete freedom to determine the extent of their obligations, as the law has restricted the freedom of contract by introducing rules on the validity of certain terms and by introducing mandatory obligations for particular types of contracts. The law of tort has developed to establish that a duty of care will be owed in different circumstances and seeks to regulate our conduct by imposing an obligation to avoid causing others loss. You will see how the different torts arise and how a business will need to understand first its legal obligations and thus try to avoid liability, and second the protection that is afforded to it by tort law.

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