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Class Note (four elements of negligence)
In the case of negligence, the plaintiff needs to establish the following lawsuit to win the case. The negligence case can stop any of the following stages. To win the negligence case the plaintiff must need to prove that all the stages are present in the case.
The stages are-
- Duty of care
- Breach of Duty
Duty of care:
Duty of care is the first stage where the plaintiff must prove that the defendant has the duty of care in the situation. To establish these, there have three test- neighbor principle, current test, and assumption of responsibility.
Neighbor principle describes how closely the affected person of mine or who may directly be affected because of my act.
Example: You throw hot water through the window which is located beside the main road. Here, you know that any person can be affected who walk in the road because of your carelessness. However, any people who walk on the road are your neighbor. So, your imagination that who would be affected by your act all are considered your neighbor.
In the case of the current test, there need to consider foreseeable, Proximity and fairness.
-Was it is reasonably foreseeable that the person in that position would be injured?
-Was there sufficient proximity among the parties also need to consider.
-If there has foreseeable and proximity it does not mean that the person has a duty of care. It also needs to identify was the duty of care fair, just or reasonable to impose liability?
The principle of assumption test is that the defendant primarily has no liability, but when he or she voluntary takes the responsibility he/she becomes liable.
Example: Your friend wants to buy a mobile phone. He said you to find a mobile that gives at least 3-hour charge backup. There was no duty of care if you don’t take any responsibility. But when you buy a mobile for him and the mobile gives only 1-hour backup there has a duty of care.
-Certain professionals where don’t need to any hesitation about the duty of care ( high standard of duty) such as a doctor, lawyers, engineers, etc.
Breach of Duty
The second stage of a negligence case is a breach of duty. It means what other people do in the same position.
For example, you sit beside the window of your house. Suddenly you saw the fire in your neighbor house. There was no one around the house. However, you don’t take any action even don’t call the fire brigade. Is there any breach of duty from your side?
It depends on what other people will do if they are in your position. If others say they must call the police or take any action it is your breach of duty. If they say, they do similar to you there was no breach of duty. It is the not question of law, it is the question of facts.
There is no case of negligence if there is no damage due to the breach of duty. So, if the defendant has the duty of care and also a breach of duty but there no damages occur the case of negligence fails.
It is simple. What is the relationship between your breach of duty and the damages? Is the damage occurs for your breach of duty?
For example, Amol hurt Nirmal. He admitted to the hospital and died 2 days later. The doctor said he died for Arsenic. Is there any negligence case? No, because of the fail of the causation test. Nirmal does not die because of Amol hurt, he died for Arsenic. So, the causation test is failed. There will be no negligence case.
How far the damage related to the defendants’ act.
For Example, Dina is a share market expert. She suggests her friend Tuli invest money in share market. Tuli invests money and loss her capital. Then she takes a loan from the bank for paying her borrowing. A few days later she got a notice from the bank if she does not repay the money within 4 weeks she lost the house. Now, Tuli decided to file a negligence case against Dina to pay the bank loan amount. Is it the right case?
Here, Dina may responsible for Tuli’s capital loss in share market. Therefore, Dina does no imaging Tuli take a bank loan for losses. There, the relation between Tuli’s bank loan and the suggestion to invest money in share market far way or too remote. So, negligence case against Dina for paying bank load is not a correct case.
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