Negligence Law Essay Example | Topics and Well Written Essays - 2250 words

Negligence Law - Essay Example Stevenson.4 This is the seminal case which changed the nature of duty. In this case, the plaintiff found a slug in her ginger beer and sued the proprietor of the store who sold this. The justice stated that duty would be broadly defined, in that anybody who might be harmed by the tortfeasor are people to whom the tortfeasor owes a duty. Therefore, privity is not required. Capraro v. Dickman5 expanded on the Donoghue analysis, stating that duty of care is required when there is foreseeable harm, proximity between the parties and that holding the tortfeasor liable would be reasonable and just. Breach is the next element that needs to be proved. Basically, negligence turns on whether or not the duty of care is breached. According to Bolton v. Stone6 states that the injury must be foreseeable for there to be a breach. In that case, the plaintiff was hit by a cricket ball. However, it was not foreseeable that a cricket ball would fly out of the arena and hit a remote person, therefore, th e injury was not foreseeable and the defendants were held not be negligent and did not breach a duty of care. Overseas Tankship v. Morts Dock and Engineering Co Ltd7 also illustrates this point. In Overseas, the defendants were allowing oil to spill out on water, and they were also sending sparks into the oil on the water. The oil ignited. However, the Overseas court held that the it was not foreseeable for water to ignite, therefore the defendants were not held liable. Causation is the next element. There is direct causation, which means that the defendant directly caused injury, and proximate causation. In proximate causation, the tortfeasor may not have directly caused the injury, but the injury was related to the tortfeasor's actions. defendant’s actions. Courts will classically use the â€Å"but for† test for causation, which means that, but for the defendant's negligence, the injury would not have occurred. Several cases may illustrate how this is applied, or not applied, as the case may be. Courts will not apply hold a defendant negligent if the injury would have occurred anyway, even if there was no negligence. For instance, in the case of South Australia Asset Management Corp. v. York Montague Ltd., a classic example of this type of injury was stated – a mountaineer is about to go on a difficult climb, but is worried about his knee. His doctor negligently examines the mountain climber and tells him he is fit to climb. The climber goes on his climb and is injured. But for the negligent medical examination the climber would not have been on the mountain climb. However, the actual injury has nothing to do with the knee – perhaps the climber is struck by a falling rock on the climb. In this situation, the doctor isn't liable for negligence, even though the climber would never have been injured but for the doctor's negligence. Another example of injury or death which might be held to be result of negligence, but was deemed not t o be the proximate cause of the death is the case of Barnett v Chelsea & Kensington Hospital Management Committee. 8 In this case, a man went to an emergency room but was told to go home and call his doctor. He died of arsenic poisoning. It was held,