TORTS
DUTY OF CARE
Plaintiff must have a certain relationship to say a certain duty exists
between plaintiff and defendant.
If the D SHOULD REASONABLY contemplates that plaintiff would suffer
from his actions, a duty of care arises (Donoghue v Stevensons). It
made away with the requirement that a person should have a Privity of
contract before a claim for duty of care would hold.
NB: Neighborhood is dependent on foreseeability (Neighborhood
Principle)
Winterbotton v Wright -
Candler v Crane Christmas
Would it be equitable to impose a duty of care to in all circumstances
Dorset v the Home Office
Weller v Foot and Mouth Desease
Caparo Industry v Dickman
Proof of Neighborhood is not enough to impose a duty of care.
Court began to recognize that rescuers deserve a duty of care -
Wagner v International Railway Co.
Anyone who has power and opportunity is owed a duty of care. Haynes
v Harwood
Baker v Bolton
Even if you dont have the power to rescue
Defenses for Negligence
Plaintiff contributed to Negligence
Baker v T.E Hopkins
Rescuers were aware of the dangers of the hazards present in the
mode of administering treatment. They contributed to the negligence.
Howerver it was held that they were owed a duty of care.
Videan v BTC
The rights of rescuers are independent of who ever they are trying to
save. However if theres no human life involved and one plays the hero
(busy body) he wouldnt he held a duty of care Cuttler v United
Dairies.
Property can be rescued Hayaette v Raiway corporations
PECUNIARY LOSS
The act of the defendant may foreseeably cause harm to the plaintiff
Hedly Byrne v Heller & Partners decision in this case removed the
requirement of the court that a plaintiff should proof injury or damage
to property has now been removed in the decision in this case. All that
is needed to proof is that he suffered loss of money as the immediate
misstatement of the negligent action.
A plaintiff doesnt always come to court for loss of money it could be
for negligence of failing to do something or an omission to act.
E.g. ECG failing to produce power to a factory which causes a
breakdown and reduction in produce.
SCM (UK) v Whittal Plaintiff alleges that the workmen of the
defendant interfered with the cable that supplied power, which
affected the typewriters. Alluminium element in the typewriters
solidified. Plaintiff had to spend money to replace the parts. The court
had to determine whether the actions had direct significant effect on
the machine
. Decision here is compared with decision in Electrochrome v Welch
Plastic. Interfereance and damage of . Plaintiff couldnt proof that
pecuniary loss was as result of loss of damage to his property.
NEED for proof that loss of money is contingent to pecuniary damage
For pecuniary loss to be recovered, plaintiff has to proof
BREACH OF DUTY
Factors of a Breach of Duty
1. Likelihood of Injury
2. Magnitude of Foreseeable Harm
3. Social Importance/Value of activity engaged in
4.
KITE V NOLEN - the likelihood of harm associated with the activity
associated in by the defendant. The higher the probability to cause
harm or injury the higher the standard of duty of care required to
prevent harm. The court requires defendant to put in place an
elaborate care
BOLTON V STONE no requirement to provide dut
The magnitude of injury may also be a factor, in such cases the court
would increase the standard for the defendant. If the injury is great the
court would place
If a person is likely to loose a leg or an arm the court is likely to
increase its standands
Paris v Stepney Borough
If the court assumes the activity that is engaged in by the defendant is
of high social importance the court would lower its standards Dabon v
Bath Tramway Motor Co. court had to decide on whether or not the
ambulance was in breach of duty of not using side mirrors. Court held
that the use of traffic indicator lights was enough.
Watt v Hertfordshire County Council City council ordered firefighters
to rescue a lady trapped, however they were not equipped with the
required tools to perform the task which led to the injury of trapped
person. Court held that it was a decision of balancing the risk( if the
risk pays of in significance)
However there are standards that govern all professions.
Whether or not it conforms to the standards to the activity in question
is a matter of importance. If it doesnt conform its a breach.
Standards here arent futuristic. It is with regards to the time the
activity is engaged in by the defendant.
Roe v Minister of Health- Plaintiff brought an action that he suffered
paralysis when surgery was performed on him. Certain anesthesia was
used that caused this. Investigations showed that the bottle that
carried the anesthesia was compromised with cracks which affected
the integrity of the anaesthesia. It was held that defendant was not in
breach of that duty as at the time it had not been proven that such a
yhing could cause harm
Risk against financial Gain if an activity is so prone to danger that no
amount of caution can prevent it the law frowns upon engaging.
However if its minimum it gives a go ahead but with a duty of caution.
A risk matched against
Latimer v A.E.C - after flood waters had receded saw dust was used to
cover factory floor to reduce slipping. Work involved lifting of heavy
machinery. If work had stopped there would be a serious loss. Held it
made more sense to continue production than to stop work.
All five factors dont have to converge to determine if there is a breach
of duty
Procedure
He who alleges must prove. However in cases where the negligence of
the defendant is so clear plaintiff is not required to prove. Where the
negligence of the defendant speaks for itself (Res Ipsa)
Where a plaintiff decides to rely on Res Ipsa he just has to say it (Res
Ipsa Loquita) without basically specifying it
