Law of Torts Master Essay Example | Topics and Well Written Essays - 2000 words

Law of Torts Master - Essay Example (Grant v. Australian Knitting Mills(1936)A.C.85). According to 'Heaven v. Pender(1883) 11 Q.B.D. 503) "actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury, to person or property". In an action for negligence the plaintiff has to prove that the defendant owed duty of care to the plaintiff, the defendant made a breach of that duty and the plaintiff suffered damage as a consequence thereof. By Duty of care to the plaintiff we mean a legal duty rather than a moral, religious or social duty. The Plaintiff has to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. There is no general rule of law defining such duty. It depends in each case whether that duty exists. Lord Atkin propounded the following rule in 'Donoghue v. Stevenson' and the same has gained acceptance : "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". He then defined "neighbours" as "persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions whic h are being called in question." In this case the defendant raised the defence of "Privity of Contract Fallacy" quoting from the case 'Winterbottom v. Wright(1842) 10 M ) In that case Lord Abinger, C.B., said, "unless we confine the operations of such contracts as this to the parties who entered in to them, the most absurd and outrageous consequences, to which I can see no limit, will ensue." Since an action for tort is quite independent of any contract, there seems to be no reason why for an action in tort a contractual relation between the parties be insisted. This fallacy was done away with by 'Donoghue v. Stevenson' by allowing the consumer of drink an action in tort against the manufacturer, between whom there was no contract. Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of the injury to the plaintiff. If at the time of the act or omission the defendant could reasonably foresee injury to the plaintiff he owes a duty to prevent that injury and failure to do that makes him liable. Duty to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed (Bourhill v. Young,(1943) A.C.92, at 104, per Lord Macmillan). In 'Glasgow Corporation v. Munir' (1943) A.C.448, at 457) Lord MacMillan explained the standard of foresight of the reasonable man : "The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in it's application a subjective element." In 'Booker v. Wenborn'(1962, 1 AllE.R. 431) the defendant boarded a train which had just started moving but kept the door of the