Breach of Torts Law (Essay Sample)

Breach-Law Of Torts Negligence
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The law of torts outlines that for there to be a liability in negligence the claimant must establish that there was a duty of care owed to him/her by the defendant and that the duty of care has been breached by the defendant (Abraham, 2002). The duty of care can be imposed by statute or develop out of a relationship.Lord Atkins in 1932 in the landmark case of Donoghue v Stevenson, there existed no generalised duty of care as an ingredient for negligence. Although the tort of negligence did exist, it applied to those situations and cases that the courts thought a duty of care existed (Baker,1979). Lord Atkins made the following observation, "The rule that a neighbour should be loved as one’s self, becomes law in that one should not injure his/her neighbour. One must take reasonable care to avoid acts or omissions that are foreseeable to cause harm to the neighbour." In the case of Janet, the owner of the shop has a duty of care to his/her customers in the store.The owner of the store that Janet went into should have put measures in place for clients that needed special attention and care. The owner of the shop did know that the store he/ she operated attracted customers of various heights hence reasonable care should have been taken in ensuring safety for the customers. There is no ladder that has been put in place for people who want goods from the shop and their height bars them from reaching the goods. The duty of care owed by the stores to their clients was breached in the case of Janet.There was reasonable foreseeability by the owner of the store that the placement of the Ginger-Ale bottles so high could have fallen and hurt a client and that they were not easily accessible. The bottles of ginger ale were a commonly consumed drink that they should have been placed a reasonably reachable place by every willing buyer of the drink. The shop owner didn’t act a reasonable average person in the society is expected to act by the placing of the ginger-ale bottles ‘out of reach’. The store owner will be liable for the damage suffered by Janet while in the course of transacting business in the store.The existence of a duty of care is brought about by the presence of the following conditions as outlined by Lord Bridge in Caparo’s case. First, there must be foreseeability and proximity of danger or harm to occur, and this must be apparent to the defendant. Secondly, a duty of care doesn’t exist in a vacuum; there must be a relationship. A relationship can be created by statute or fiduciary. Lastly, it must be fair just and reasonable in the circumstances beforehand for there to be imposed a duty of care.The fact that Janet was taken to hospital after suffering an injury to her right hand at the store did bring into existence a relationship between the doctor and Janet. Doctor Nick had a duty of care to Janet by the creation of the relationship. The doctor had to act as the professional calls for or else there could arise professional negligence and malpractice. Doctor Nick performed an experimental operation on Janet of which the repercussions were unknown to the doctor and Janet. Janet did only consent to be treated but not being experimented on. Lord Edmund Davies's observation in 1980 stated in the case of I.B.A. v E.M.I, "The law requires even pioneers to be prudent". The case of Doctor Nick deciding to try an unknown therapy to the land on Janet constituted professional malpractice (Parisi, 1992). Doctor Nick should have made himself conversant with the side effects of the alien remedy before employing. As stated by Lord Edmund, Doctor Nick as the promoter of the strange treatment therapy in his country should have been prudent in its admission.In determining if the Doctor Nick was negligent there are principles to guide the inquiry. In the first instance, the defendant must have owed the plaintiff ...