Duty Of Good care Imposed On Tort Of Neglectfulness Law Essay

The article below handles the legal issue of whether a work of treatment should be enforced on the tort of negligence. Regulations of Great britain and Wales has only accepted neglectfulness as a tort in its own right since the case of Donoghue v. Stevenson. In the latter case, Lord Atkin explained that in certain situations, people are under an responsibility to take affordable care in order to avoid damages to others. While taking into consideration this statement created by Lord Atkin, lots of seminal conditions will be talked about and researched prior to deciding whether such an responsibility should be enforced. Furthermore, the judgement in Dorset Yacht Co. Ltd v. OFFICE AT HOME shall be taken into account when critically evaluating the remaining of the essay. And finally, after reviewing your choice in Dorset Yacht Co. Ltd v. Home Office, all relevant conditions involving claimants attempting to argue that responsibility due to the criminal works of third people should be imposed will be looked at, as well as a conclusion attracted concerning whether British courts are in actual fact unwilling on imposing such responsibility.

In its broadest sense, neglectfulness can be defined as some kind of incorrect; carelessness due to which an individual suffers accidents of some kind, or as has been put by Winfield and Jolowicz, it is "a breach of legal work to take care which results in harm to the claimant". And, since under the law of tort the burden of substantiation always falls on the claimant and not the accused, it is up to the claimant himself to demonstrate if he's to achieve a promise in negligence. Furthermore, there are some criteria that need to be achieved before a state for problems is allowed; if there is a responsibility of attention owed by the defendant to the claimant, if there's been a breach of that duty which triggered the claimant to put up with a reduction or damage and when the breach was brought on by the defendant's carelessness.

There can be different types of 'responsibility of health care', for example, a statutory obligation of care and attention (where in fact the duty is mentioned in an Action of Parliament), a contractual responsibility of care (where the duty is given in a signed contractual doc), or even a professional responsibility of attention (where the duty of care is dictated by work ethics). And where none of the above apply, then your courts can thrust forth and impose a work of care but this requires some pre-conditions, which were at the mercy of a great deal of talk and debate from the first basic theory proven in Donoghue v Stevenson, to the two-stage test of Anns v Merton London Borough Council, to the now leading authority on the problem - Caparo Business Plc v Dickman. Indeed, before work of health care could be enforced, there is a now another test, often called the 'three-stage test' that should be satisfied.

In Dorset Yacht Co. Ltd v. Home Office, the range of regulations of negligence was lengthened to situations where the criminal acts of an authorized, some borstal young boys who had been in their good care, had the effect of imposing a duty of good care on the house Office. Lord Reid one of the judges of the case, gave the leading judgement, saying that "the well-known passage in Lord Atkin's talk must i think be seen as a statement of concept. It isn't to be cured as if it were a statutory meaning. It will require certification in new circumstances. But I feel that enough time has come whenever we can and should say that it must apply unless there may be some justification or valid explanation because of its exclusion". The affirmation of principle given in this case was important as it affirmed a work of care could be imposed on a party to prevent harm triggered by the actions of others, a spot that had not been previously thought to be part of the liability in neglect. The legal basis for your choice itself is perhaps even more important than the basic principle of legislations created. Responsibility hinged on the "special relations" between your Home Office and the 3rd party who induced the harm, to the result that the third get together could be performed liable for declining to avoid the damage. "This together with a high degree of forseeablity - escaping and creating harm was the 'very kind of thing' the males were likely to do - made the house Office liable". Following this statement, it can be said that the expansion of the ambit of negligence liability to functions of third celebrations carries a quantity of caveats and it is these caveats which (as will be explored below), tend to negate responsibility in the majority of similar scenarios.

Decisions in favour of statement

There have been a number of instances where the courts have been required to consider the issue lifted in Dorset Yacht Co. Ltd v. OFFICE AT HOME, namely in circumstances where aparty would become liable for the criminal activities of another. The first major circumstance to think about this particular concern was Hill v. Chief Constable of West Yorshire Police. The mother of the last Yorkshire Ripper's victim argued that the negligent investigation by the authorities resulted in Peter Sutcliffe murdering her princess. However, the primary difference with this circumstance and that of the Dorset Yacht case was that there was no special romance between the authorities and the accused who had been interviewed by the police. Furthermore, for the courts to carry that the authorities could be liable for less than detailed investigations would in all probability business lead to the imposition of crushing liability.

Nevertheless, from 1990 onwards, Caparo Industries Ltd v. Dickman, became the best authority on instances affecting whether a responsibility of health care should be enforced. Based on the Caparo Companies Ltd v. Dickman, three requirements must be satisfied in new factual situations before a court docket can impose a duty of care. The three requirements were held to be;

"the harm must be foreseeable; there should be a sufficiently proximate romance between the celebrations; and it must be fair just and sensible for the judge to impose a obligation". All the remaining cases will be examined in light of this judgement.

Topp v. London Country Bus (South West) Ltd, is one of the few cases which will not involve a open public body, yet it tends to support the contention elevated in the above statement. In Topp v. London Country Bus (South West) Ltd, the action was helped bring by somebody who was injured whenever a bus was taken, and the legal debate was whether it was acceptable to impose a duty of good care on the bus company for failing woefully to secure the bus and avoiding the harm occurring. The standards lay out in Caparo v. Dickman was applied and the courts required a different approach to that in Dorset Yacht Co. Ltd v. OFFICE AT HOME, where it was alleged a duty of care would be enforced. In Topp however, there was not sufficient proximity between the bus company and the individual who stole the bus for it to be reasonable to impose a duty of care. Furthermore, the truth further facilitates the contention increased in the quotation mentioned above about courts generally unwilling to impose responsibility for criminal acts of others. This unwillingness was yet supported by the situation of Alexandrou v Oxford, where it was held that the police do owe a obligation of good care to the victims of any crime which they investigate but fail to prevent. In other words, there was not enough proximity between the burglars and the police for a obligation of care to occur.

The case of Cowan v. Key Constable for Avon and Somerset, engaged an unlawful eviction which was permitted to continue despite the police arriving at the scene to regulate the peacefulness. This case reinforced the idea of criminal activities of people which could have been easily ended by the police but had not been. Once more, the courts came to the conclusion that no special romance existed between the police and folks carrying out the eviction, therefore, no responsibility should arise. "Because of this it's been held that the police do not owe any obligation to a sufferer of offense, not only for neglect in the exploration of crime but also in working out of its officers on how to take care of racial occurrences". Moreover, the truth of K v. Secretary of Express for the house Department, recognized the statement made by Turner and Hodge. This included the Home Office releasing a making love offender who seven a few months after his release sexually assaulted a person. The Home Office was held not to be liable by the courts for the destruction caused by the released prisoner, saying that "there was insufficient proximity between the claimant and the Home Secretary for a responsibility to be imposed". It really is evident that from the instances considered above, that in almost all situations, the courts are indeed hesitant to impose a responsibility of good care on a party consequently of crimes determined by someone else.

Cases from the statement

On the other hand, despite the reluctance of courts allowing liability claims to succeed, the courts do in some instances eliminate judgements towards claimants and impose such liability on third parties. The situation of Swinney v Chief Constable of the Northumbria Police, is a fairly strange one, as it included a couple who have been physically injured by a gang of criminals following the law enforcement to whom they had provided information relating to the gang's unlawful activities allowed their identities to fall season in to the gang's hands. There is nonetheless, a significant disparity between your latter circumstance and the instances examined before. Namely, there was a greater amount of proximity between the victims and the police. Moreover, there is the public plan argument submit by Lord Justice Ward, who intended that "the welfare of the city at large demands the encouragement of the free flow of information without inhibition. Accordingly, it is arguable that there is a obligation of care, which no thought of public policy precludes the prosecution of the plaintiffs' lay claim, which is judged on its merits later". Upon this basis, the courts felt there was in fact a duty of treatment owed by the authorities, given there is "sufficient proximity" between the parties and damage of this kind was obviously foreseeable.

Conclusion

Taking all the reality and judicial decisions relevant to this topic into consideration, it does seem to be that there surely is a definite unwillingness with respect to the courts to impose liability on a celebration who didn't prevent a legal act determined by another party. In addition, given the apparent point that general public plan issues play an important part, as the defendant in question is normally a public establishment, additionally it is worth noting that judicial view can even be extended to the solely private action in Topp v. London Country Bus (THE WEST) Ltd.

The main argument elevated by the courts however, to justify their decisions is that "there was no proximity because the real culprits were the 3rd parties". It appears therefore that for the courts to impose responsibility the defendant would need to have "taken on extra obligations" as has been confirmed by the truth of Swinney v. Main Constable of the Northumbria Law enforcement officials. It could therefore be said as a final point, that your choice in Dorset Yacht Co. Ltd v. Home Office is as a matter of known fact analogous and this the next decisions have to all objective and purposes simply tried out to limit its impact within the tort of neglectfulness.

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