...DUTY OF CARE The tort of negligence owes its origins to the tale of a decomposing snail that was found in a ginger-beer bottle – Donoghue v Stevenson (1932). The claimant, Mary Donoghue, went with a friend to a café, where her friend bought her a bottle of ginger beer. Donoghue opened it and poured some of the contents into a glass. When she finished this glass, she then poured the remainder of the bottle into the glass. At this point, the remains of the snail floated to the surface. This caused Donoghue to develop gastroenteritis and nervous shock, and she sought compensation from the ginger-beer manufacturer. The case eventually reached the House of Lords, where Lord Atkin decided the case in her favour with his famous Neighbour Principle. In summary, this stated that ‘you must take reasonable care to avoid acts or omissions which foreseeably could injure your neighbour’, where neighbours are defined as ‘persons who are 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’. In this case, the ginger-beer manufacturer should reasonably have had the claimant in mind when manufacturing and bottling the ginger beer. This test clearly established that in order for a duty of care to be owed, there must be reasonable foresight of harm to persons who it is reasonable to foresee may be harmed by one’s actions or omissions. Such ‘duty’ examples would obviously include...
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...Donoghue v Stevenson (duty of care) The first element in a claimant’s case negligence is whether the defendant owed him a duty to take reasonable care. Duty of care therefore, exists as a control devise in order to determine who can bring an action for negligence and in what circumstances. When a person suffers loss as a result of negligent conduct, they will want to shift that loss on to the person who caused it though negligence action. When a negligence action is brought to court, the judge will usually be able to rely on precedent to determine whether a duty of exists. But what if there is no precedent? What test should the judge use to determine whether a duty of care exists? Negligence liability has existed in one form or another for centuries, but until the 19th century there was no concept of duty as we now know it. Liability existed within defined relationships such as doctor-patient or employer-employees. Where a case fell outside a recognised relationship, there was no test for determining whether liability existed or not until the most famous case in legal history Donoghue v Stevenson in 1932. In Donoghue, the claimant suffered illness as a result of consuming a ginger beer bought by her friend. She could not sue the retailer nor the manufacturer as she had no contract with both of them. On the facts the café owner would have been liable to the friend for breach of contract in selling him a defective product, if the friend had suffered damage. However the House...
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...negligent misstatement. It is not a fraudulent misrepresentation because the defendant did not make any false statement or aseems to have decent in mind. 2. Rule 2.1 Step 1: Duty of care The very first rule to establish is whether the defendant, Don, owes a duty of care to the plaintiff, Patrick and Mary. Following the case of Donoghue v Stevenson (1932) , it is clear that the duty of care is not dependent on whether a contract exists, which there is none between Patrick and Don or Mary and Don. It is very much dependent on these things: a) A duty of care can be owned when giving advice/supplying information The defendant, Don, ought to know that while dispelling information that has crucial implications, he is being trusted to give the best kind of advice to the other party (L Shaddock and Associates Pty Ltd v Parramatta City Council, 1981) . The principals of this case states that whenever a person gives information or advice to another upon a serious matter in circumstances where the speaker realises, or ought to realise, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on the information or advice, the speaker comes under a duty to exercise reasonable care in the provision of the information or advice he chooses to give. It is reasonable to...
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...The factors that indicate whether Davis owed Esposito a duty of care are that some actions can be tolerated to some extent and some actions cannot be tolerated at all. That some actions are right and reasonable while others are not or illegal. Duty of care indicates that we are free to do as we want, whenever we want to as long as we don’t infringe on the interests of others or cause harm. In Business Invitees each and all business have to provide safety and due care of its customer and employees at all times by advising of any dangers, properly training employees and clearing any hidden dangers. Each Business also has to protect every person that comes on all their property and provided a safe environment. Tort negligence occurs when someone or group of people are injure because of someone’s failure to due care. Yvonne Esposito was exiting the arts and craft show where Jason Davis works. Jason collided with Yvonne because he was not careful to make sure no one was behind him before he proceeded and knocked Yvonne to the ground. Jason failed to provide due care to Yvonne. A negligence tort was committed because Yvonne suffer a legal recognizable injury and harm was done to her. Because of these acts, she is entitle of compensations from the injuries that resulted from the negligent acts. Another factor that indicates duty of care is causation. Miller and Jentz writes “If a person fails in a duty care and someone suffers an injury, the wrongful activity must have caused the harm...
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...1.1 Define a duty of care: is a requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. If a person’s actions do not meet this standard of care, then the acts are considered negligent and any damages resulting maybe claimed in a law suit as negligence. 1.2 Describe how the duty of care affects your own work role: We have a duty of care to our client’s health and welfare. I have duty of care to make sure my client’s needs are meet on my duty shift: including the health, welfare, emotional and physical needs, dietary needs, personal hygiene, medication and safety. I must only do what I have been trained to do and must engage all other services available to manage any client needs I have not been trained for i.e: a doctor in case of illness, a podiatrist in a case where toe nails need cut etc. 2.1 Describe dilemmas that may arise between the duty of care and an individual’s rights: Any individual can refuse to take prescribed medication or refuse to have test for illness. An individual has the right to refuse treatment. All individuals have this right unless incapacity to consent has been proved that the individual does not have the capacity to choose for themselves, capacity must be assumed in all cases until capacity has been assessed by a professional. It can be hard to support a client with this, it can be extremely difficult to watch a client refuse treatment when...
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...Tort Law Assignment 2010/11 By Louis Rohr Student ID 10716461 1st year BCL Title: My Analyses on the Duty of Care in Irish Tort Law Tort law covers a wide range of wrongs committed by one person against another. Tort law covers those wrongs that arise because of a breach of a duty imposed by law, as opposed to duties imposed by contract. The first steps towards the modern doctrine of negligence was explained in Heven and Pender. Lord Esher discussed why a duty of care might be owed by one party not to injury another. First, that there must be duty of care owed. Secondly, that there is a breach of this duty. Third, that there must be loss or damage suffered. Fourth, that there is causal link established between the breach of duty and the loss or damage suffered. Later more fundamental elements were needed to prove negligence. Indermaur v Dames is a leading common law case outlining the duty of care involving invitees and invitors. An invitee is a person who’s invited by the occupier (owner or tenant) and provides a material advantage, such as shops, bars etc. When an invitee enters an occupiers land he is expected to take reasonable care on his part to prevent damage from unusual danger for which he knows or ought to know. Where there is neglect, the question is whether or not they took reasonable care or was there contributory negligence? From here, the common law developed other rules to ultimately determine liability for buildings and include inter alia, elevators...
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...Duties of Director: The duties of directors of a company have been elaborately explained by Romer L. J in Re City Equitable Fire Insurance Co[1]. The important duties are quoted from this case and summarized below: 1. Distribution of work: The manner in which the work of a company is to be distributed between the board of directors and the staff is a business matter to be decided on business lines. 2. Good faith: Every director must act honestly and in the interest of the company. 3. Reasonable care: A director “must exercise such degree of skill and diligence as would amount to the reasonable care which an ordinary man might be expected to take in the circumstances on his own behalf.” 4. Degree of skill: A director “need not exhibit in performance of his duties a greater degree of skill than what can be reasonably expected from a person of his knowledge and experience; in other words he is not liable for mere errors of judgment.” 5. To attend meetings: A director “ is not bound to give continuous attention to the affairs of his company; his duties are of an intermittent nature to be performed at periodical board meetings and the meetings of any committee to which he appointed, and though not bound to attend all such meetings, he ought to attent them when reasonably able to do so.” 6. The director’s duty of disclosure: The Companies Act of 1956 maakes it obligatory upon directors to disclose certain facts to the company: (1) If a director is interested...
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...Employer’s Care of Duty Dwen Guydon Strayer University LEG500: Law, Ethics, and Corporate Governance Prof. Phylanice Nash, J.D. August 4, 2011 1. Explain whether Jake’s actions are in or out of “his scope of employment.” According to the definition given by USLegal.com, scope of employment refers to a person actively involved in an employment task at a particular time, usually an issue when an accident occurs, which is required to make a claim for work-related injury under state Worker's Compensation Acts (Scope of employment law & legal definitions, n.d., para.1). Workers’ Compensation reported by Terry Halbert and Elaine Ingulli, (2010) is a program which employers are required to make payments to employees who are injured during the course of their employment, regardless of negligence or fault (pp. 376). For example, based on the video, Jake, the service manager for Rally Motors, cuts his thumb while performing a complete car inspection for the customers. Although Jake was told to only perform the free oil changes by his boss, he owes a duty of care to the customers because he is a certified mechanic. He must complete the oil change and check the basic systems, such as the brakes, tires, and transmission, according to the Automotive Service Excellence (ASE) standards. As a certified mechanic, he must make sure each car is thoroughly inspected and nothing is wrong before leaving the shop. Jake’s and the company’s reputation depend upon how well he performs on...
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...Employer's Duty of Care and Issues of Compensation August 9, 2010 Law, Ethics, and Corporate Governance LEG-500 Abstract For the purposes of this assignment we independently viewed a video entitled “Employer's Duty of Care and Issues of Compensation.” In the video, the car dealership is running a special promotion offering free oil changes in order to get existing customers back into the showroom. An employee notices a backlog of customers waiting in line for their oil changes and notifies the owner of the dealership, Herman. Herman calls his newly promoted service manage, Jake, to explain the backlog. Jake emerges from the service bay holding his bloody thumb in a rag. He explains as certified auto mechanic, he is doing a thorough job on each car en though he is working overtime without overtime pay. The manager tells him to do a quick, “lousy” job of the oil changes just to get them done. He doesn't care about Jake's mechanics standards. Jake retaliates by complaining he's hurt his thumb due to his long hours and threatens a worker’s compensation claim if he isn't compensated fairly for his work. The video give rise to a number of ethical questions. The purpose of this paper is to address these questions as detailed in the assignment using readings on employee and consumer privacy law, as well as business ethics and corporate policy. Answers to Assignment #3 Questions The questions (in bold type face) follow as detailed in our assignment. 1. Explain...
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...principle of negligence guarding today’s society is such that a person should not harm people to whom he/she owes a duty of care. Furthermore, the failure to act reasonable is considered to be negligence. A level of care that a reasonable man under the same circumstance would have exercised a better level of care to whom he or she owes the legal duty too. The law of Negligence has advance over the past century with the establishment of the railroads and the rapid increase of Accidents following the industrial revolution and the increase in industrial...
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...The topic that the writer will discuss in this paper is employer’s duty of care. The video that is attached to this assignment touched on the topic of employer’s duty of care and issues of compensation. Throughout this assignment the writer will convey to the audience the pros and cons of both men in the video, as well as go into detail on the topic of employer’s duty of care. 1. Explain whether Jake’s actions are in or out of “his scope of employment.” Jake's actions are out of his scope of employment. The reason being is because he is taking his time in completing the free oil changes. Based upon the writer’s observations it seemed as if Jake used the free oil changes as a means to get Herman's attention. Jake felt that he should be paid overtime regardless of the fact that he was a full time salary employee. Jake’s certification would have been jeopardized if he did not do the oil change properly. Jake stated that as a certified mechanic he has a “duty” to provide exceptional service and to ensure that each car is maintenance properly. 2. Explain whether or not Herman is responsible for Jake’s injury. Based upon the writer’s observation it’s safe to say that both parties are responsible for Jake’s injury. The reason the writer feels this is because Herman as a manager came up with the promotion to have free oil changes. Herman placed a high demand on his service team, and by doing so, he also took for granted the impact it would have on his personnel. Jake worked...
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...the principles of the duty to act and the duty of care consistently. This provides reasonable enough argument that the English criminal law is indeed in need of reform in order to tackle its inadequacies, promoting the rule of law. Two arguments faced towards criminalising omissions: the social responsibility argument and the causation argument . The social responsibility argument is built upon the collective good, duty to help those in need, the idea that the law should reflect on moral duties as citizens and failure to conform will result in punishment. While, the causation argument is built around claims that an offender that fails to act is deserving of punishment because the harm came about at the result of his or her omission...
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...Abstract This case discusses the situation of the lawsuit filed by a shareholder of car manufacturer against Roger claiming that he violated his duty as a director by convincing the board to launch a Sports Utility Vehicle. Roger should not be responsible legally because the project was not successful. As the director of the car manufacturing company, Roger was quite positive on the prosperous launch of the sports utility vehicle. Areas and Principles of Law Analysis of the principles of law and key facts determine that the responsibility of a director is to act in the best interests of the shareholders of the company. Some of his responsibilities include increase growth, increasing economic worth, and increasing returns to the shareholders; while ensuring that the company is operating ethically by obeying laws, regulations and accounting procedures. Key Facts This case discusses the situation of the lawsuit filed by a shareholder of car manufacturer against Roger claiming that he violated his duty as a director by convincing the board to launch a Sports Utility Vehicle. Roger, as the director of the car manufacturing company, was quite positive on the successful launch of the sports utility vehicle. Roger tried to persuade the board because he researched and found that there was an increase in demand of sports utility vehicles. Also he found that most of the competitor companies have been successful with their launches. Roger realized that he wanted his company to...
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...Rally Round the Trade Name Professor Michael S. Green Law, Ethics and Corporate Governance 14 December 2011 1. Explain whether or not the fact that Gabby's surname is Rally gives her the right to use it any way she wishes. Since Gabby's surname is Rally it does not give her the right to use the name Rally as the lead name of her business. The Lanham Trademark Act which has a subsidiary division called the Federal Trademark Dilution Act of 1995, which protects company’s ownership rights to names, logos or symbols that depict the name of that business. In this case the name "Rally" has been identified as a prominent car dealership, we then have a brand new company in which its business is in food services. The intertwining of the same names is making it very difficult for anyone to distinguish between pizza pallor and a car dealership. The company "Rally Motors" has the legal right to prevent any other company from infringing on the use of the name "Rally". As Herman made very clear in the video presentation, "If I let you name your business "Rally", then I'll have a used car salesman calling his business "Rally", and he'll open p right across the street" (Rally Round the Trade Name skit). If Herman where to allow this to possibility continue , sooner or later, there would be other companies that would develop wit the same type of business plan and possibly overrun Herman’s car dealership. The usage of the name "Rally” for Gabby's pizzeria is a prime example of the...
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...Employer’s Duty of Care To what extent are employees required to perform their job with a duty of care? We all know that corporate officers have a duty of care to the corporation that they are employed by. They have an obligation to perform their duties with the care that a person in a like position would reasonably exercise under similar circumstances (Halbert & Ingulli, 2010, p 52). As a fellow employee down on the totem pole, we are held to the same standard to act in good faith in whatever position that we hold. Our employers also have that same duty to take care of the employees that perform the day to day tasks to make the company successful. Whether it is through extra time off, increase in pay, or better benefits employers have an obligation to their employees. The relationship that employers have with their employee requires that duty of care is displayed by both parties. 1. Explain whether Jake’s actions are in or out of “his scope of employment.” In the video Jake, the service manager, provided a basic inspection of the cars along with the oil change. While the promotion only required a free oil change the inspection was within his scope of employment. Scope of employment refers to anything a person does in the ordinary course of doing his or her job (“Scope of Employment”). Generally, an act will be considered part of an employee’s employment if it is committed while he or she is performing services for the company or incident to the provision...
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