A case study on negligence liability--加拿大Paper代写范文

加拿大Paper代写范文:“A case study on negligence liability”，这篇论文主要描述的是根据侵权法的描述，发生过失责任侵权的情况，主要是看侵权者是否有承担相应的义务或者是补救措施，在一般的情况下我们会先确定原告的需要明确自身的哪些义务，其次就是哪一方出现了违反义务的情况，最后判断因为侵权的情况是否已经造成了对方的损失或伤害。

The issue here is the condition of negligence liability, mainly about whether the manufacturer owns and breaches a duty of care to Vanessa and the possible remedies for Vanessa

Law

According to tort law, d duty of care is a kind of legal duty which is borne by an individual requiring that he should conduct himself to a standard of reasonable care when he or she is performing any acts, which would harm others foreseeable.

In order to determine whether there is negligence as well as negligence tort liability in a specific case, there is a three-stage test to be followed. First of all, a person is owed a duty of care to the claimant, secondly, there should be a breach of duty of care when the duty if existed. Thirdly, harm which is recognized by law or legislation has been caused.

According to the legislation, in order to claim for negligence liablility, the plaintiff or the claimant must be able to show that the defendant has breached a duty of care that he has breached.

At the very beginning, the duty of care exists only between individuals who have direct relationship with each other; at that time, the principle that duty of care would be limited to those with whom one was in privity one way or another was established by the case of Winterbottom v. Wright (1842). [1]

However, it becomes a principle that the duty of care would be imposed by operation of law between individuals with no current direct relationship. This great change was attributed to a series of case law, in other words, common law. Such as MacPherson v. Buick Motor Co.(1916)[2]and Australian Safeway Stores Pty Ltd v Zaluzna[3]

And one of the most important one of them would be Donoghue v Stevenson , it is a foundational case in scot delict law as well as English tort law, in this case, the lord identified that there should be a general duty of care to a neighbour to avoid foreseeable injury or damage. In this case, the requirements of a duty of care were established by the house of lord.

It established a modern concept of negligence by way of building up general principle where a person would own a duty of care to another person. It also set up two requirements of a duty of care, one is

The statement of Lord Atkin in Donoghue v Stevenson [4] was considered as a  starting point for understanding modern common law tort, that is to say , two requirements of  duty of care is established, one is Foresee ability, which refers to that each individual should take reasonable care to avoid acts or omissions which may reasonably foresee would injure his or her neighbour.

The second one would be Proximity, which refers to that only persons who are so closely and directly affected by the act or conduct of another person would be entitled to claim for duty of care.

Generally speaking, the two requirements of imposing duty of care and negligence tort liability to another person would be foresee ability and proximity.

In Donoghue v Stevenson, the lord also stated that a manufacturer owes a duty to consumers as well as the users of its products not to cause them harm.

What more, ‘neighbour principle’ is also built up through this case, which refers that the lord there should be a general duty of care to a neighbour to avoid foreseeable injury or damage. At the same time, Neighbour was defined as someone who may be reasonably contemplated as closely and directly affected by an act of another person or another individual. In the case of Donoghue v Stevenson,  it really means no difference who bought the ginger beer, for it was reasonable to consider that anyone who drank the beer would have suffered the same  injure could thus be considered under the ‘neighbour’ principle.

The second step is to determine whether there is breach of duty of care. In a case where a duty of care has been established, the plaintiff has to prove that the defendant failed to do what a reasonable person would have done in the same situation. That is to say, under the circumstance the defendant fails to meet the aforementioned standard, there would be a breach of the duty of care.

The third step would be to decide whether the damage is legally recognized and protected. It means that the losses or damages are direct results of the breach of the defendant and they should not to be so remote. There are two parts to this stage, one is causation, and the other one is remoteness.

Application

In this case, the aforementioned three-step should be applied as a general principle in order to determine whether the manufacture should bear negligence tort liability for the victim.

Firstly, as a manufacture, it should be responsible for its products and for the consumers of its products. It should foresee that anyone would drink its products and there would be injure to its consumers when the quality is bad. And although the victim has not made contractual relationship with the manufacturer, however, she meets proximity for she drank the juice which is made by the manufacturer.

Secondly, the manufacture breached his duty of care as a manufacture. As a reasonable person, the manufactures should foresee that dirty juice would cause injure and damage to his consumers, but he fails to take protective measures to prevent the juice from poisoned by flies, which made the juice dirty and poisoned.

Thirdly, the juice made by the manufacture caused damage to the victim. Vanessa suffers shock and sickness and spends money in seeing a doctor; what is more, she loses $2,000 from not being able to work in her normal job for two weeks. As to the former part, she would claim for compensation from the manufacture since this damage is direct. As to the latter part, she could not claim for it is too remote.

Conclusion

Since the conduct of the manufacture meets the three-step stage of negligence tort liability, the manufacture should compensate Vanessa for her loss except her wage losses.

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