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Discussion of the tort of negligence

Discussion of the tort of negligence

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Discussion of a quotation, a portion of which is given below:

“The tort of negligence is quite young by the standards of the common law, but it has thrived so mightily and grown so lusty that one could be forgiven for wondering whether there was any room left for any other tort at all."
Discussion of a quotation, a portion of which is given below:

“The tort of negligence is quite young by the standards of the common law, but it has thrived so mightily and grown so lusty that one could be forgiven for wondering whether there was any room left for any other tort at all."

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Published by: Undergraduate Awards on Sep 01, 2012
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10/27/2013

 
“The tort of negligence is quite young by the standards of the common law, but it hasthrived so mightily and grown so lusty that one could be forgiven for wonderingwhether there was nay room left for any other tort at all. Negligence is always tryingto edge out the other torts in the hope of elevating into a completely general andcomprehensive principle its own proposition that it is actionable unreasonably tocause foreseeable harm to another.”(Tony Weir, A Casebook on Tort)To what extent, and for what reasons, do you agree with Weir’s view? Discuss thisstatement with reference to the establishment of a duty of care in the tort of negligence today.1
 
Weir’s quotation relates to the growth of the tort of negligence and the propositionthat reasonable foreseeablility is the key to a negligence action. In a successful actionin negligence a claimant will have shown that he has suffered damage caused by a breach of a duty of care owed to him by the defendant
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. The development of the dutyof care principle has been the main way in which the courts have tried to control thegrowth of negligence
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and it is therefore this element on which we will focus. Thedevelopment of the duty of care principle will be outlined and the currentrequirements for establishing a novel duty of care identified. Certain types of harmsuffered may require the court to look beyond these general principles. To illustratethis point recovery of economic loss arising from negligent misstatement will beexamined. In addition other areas in which the duty doctrine has had a marked affectwill be identified. Finally a conclusion will be drawn as to how Weir’s statementaccurately portrays the current position.A defendant will only be held liable for damage arising out of his negligence if heowes the claimant a duty of care. In the words of Lord Porter ‘The duty is not to theworld at large. It must be tested by asking with reference to each severalcomplainant: Was a duty owed to him or her?”
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Kidner states that “duty of care is oneof the ways in which risk can be allocated in society, i.e. should potential claimants or  potential defendants bear the risk of injury occurring?”
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The question of whether there is a duty owed is one of law, not of fact. Therefore as per McDonald J “When…a court holds that the defendant was under a duty of care…it is declaring that a cause
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These three elements may be considered together as per Lord Denning in Roe v Minister of Health[1954] 2 QB 66
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But see also rules on remoteness of damage: Elliott, C, and Quinn, F,
Tort Law
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th
ed (Essex: PearsonLongman, 2005),at p.104-109
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Bourhill v Young [1943] AC 92
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Kidner, R,
Casebook on Torts
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th
ed (Oxford: Oxford University Press, 2004), at p.39
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of action can exist in other situations of the same type.”
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However, as per LordMacmillan, “The criterion of judgement must adjust and adapt itself to the changingcircumstances of life. The categories of negligence are never closed.”
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It is to thedevelopment of new duties that we must now therefore turn.Prior to 1932 no general principle existed for the determination of a duty of care.Then, in Donoghue v Stevenson, Lord Atkin stated that a legal duty exists to “takereasonable care to avoid acts or omissions which you can reasonably foresee would belikely to injure your neighbour.”
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. Lord Atkin goes on to define neighbour as anyoneto whom I ought reasonably to have contemplated as being closely and directlyaffected by the acts or omissions in question
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. Following this case, a new duty could be established if there was reasonable foresight of damage to the claimant and policyreasons existed for such a duty to be established. In 1970 Lord Reid took the view inDorset Yacht Co. Ltd v Home Office that the ‘neighbour principle’ should applyunless there is justification for its exclusion however it would require “qualification innew circumstances”
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. The House of Lords went one step further in Anns v MertonLondon Borough Council
.Lord Wilberforce introduced a 2-stage test for establishing a novel duty of care. Firstly, if the situation fell within Lord Atkin’s‘neighbour principle’, then a prima facie duty would arise. Secondly, the court shouldlook for policy reasons, which would negate the existence of such a duty. Thisreversed the burden of proof putting it on the defendant to rebut this presumption of aduty on policy grounds. This decision appeared to throw off the shackles of restraint
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Nova Mink v Trans Canada Airlines [1951] 2 DLR 241
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[1932] AC 562 at 619
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ibid at 580-581 Known as the ‘neighbour principle’
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ibid
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[1970] AC 1004 at 1027
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[1978] AC 728
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