The Law of Negligence Essay Example | Topics and Well Written Essays - 2000 words

The Law of Negligence - Essay Example 1The decision of Donoghue v. Stevenson was the point from where carelessness or a general duty for carelessness was recognized. In the case it was recognized that a manufacturer owed a duty to ensure that the produce were free from defect, to the ultimate consumer, and that any damage to property or personal injury should have been foreseen by him. In the particular case the claimant argued that she was poisoned due to drinking the ginger beer, purchased by her friend, due to the fact that the opaque form of bottle did not allow her to notice that the beer had a decomposed snail in it. The House of Lords by a bare majority found that a duty of care was owed to her, thereby overturning the previous decisions. Lord Atkin formulated on the general conception on which a duty of care was determined upon or in other word the famous "neighbor principle". The principle said that all reasonable care should taken to avoid acts or omissions from which it was reasonably foreseeable would injure the neighbor. This case started to recognize what had been termed the social wrong and so based negligent liability by determining the fault. Damage also is an essential part for proving neglige3nce and so the claimant must prove that an injury was sustained as a result of the defendant's negligence. Fault, damage ad causation is necessary but not sufficient condition of liability. The focus therefore in claims of negligence is that a duty has to be established for any claims for possible liability. Thus even if it can be shown that there has been a damage caused to the claimant the courts may nevertheless not grant negligence if it is found that there is no duty situation. Further there have been restrictions imposed by courts for claims of pure economic loss. 2In Murphy v. Brentwood DC the courts limited the scope for claiming economic loss but there are possibilities of claiming it in a number of situations. Further the courts have created a distinction between acts and omissions, liability for positive acts have been long recognize but this has not been so for omissions which are only allowed in very exceptional circumstances. 3The duty of care attaches with it the concept of foresee ability as Lord Wright said in Bourhill v. Young that the concept of foresee ability is always relative to the individual affected . However it is further stressed that foresee ability in itself is not adequate for establishing duty of care. Even though Lord Atkin place great emphasis on reasonable contemplation or foresee ability of harm as a precondition for establishing duty of care it fails to explain many claims under physical, non-physical and property damage which are even though foreseeable but still fall outside the head of negligence. The test for causation limits liability and so the courts are allowed to make value judgments when ascertaining damages. The courts have at times used the but for test for establishing liability- would the loss have occurred but for the negligence of the defendant. This limits the liability of defendants to the extent of his personal responsibility. The question of whether a duty of care is owed by the defendant is a matter of law and so is ascertained by the