LEGAL SCENARIO ANALYSIS

Legal scenario analysis

Legal scenario analysis

Introduction

This assignment will establish the elements needed for a person to be held liable in Tortious Law. Once the elements have been established they shall then be used to determine if the individuals in each scenario would be held liable. Negligence claims are successful if the plaintiff can be able to prove all the elements required for a successful action in a court of law. Failure to prove all the elements will result to the suit being defeated on the grounds of insufficiency of evidence.

Element of Negligence

The elements of negligence are duty of care; breach of that duty of care; causation, i.e. a causal link between the individual's injury or property damage; and actual damage either to a person or to property. Each of these elements are essential to a successful claim under the law of tort, however the first step is to consider whether there is a duty of care between the injured person and the person whose actions have caused it. There are two branches of duty of care, those duties recognised by law and those inferred by the circumstances. In cases where no duty of care has been imposed by law the test of the foreseeable claimant is used; whereby the duty is not owed to the world at large (as a duty in criminal law would be), but only to an individual within the scope of the risk created, that is to the foreseeable victim. The cases that are essential to understanding this concept are Palsgraff v Long Island Railroad Co, Hay or Bourhill v Young; Caparo v Dickman; Hill v Chief Constable of West Yorkshire; and Osman v UK. These cases have formulated the modern understanding of duty of care, the Palsgraff Case set forth the notion that an individual should not be responsible for unforeseeable circumstances of their actions and in such cases a duty will not be enforced, i.e. if the individual that was injured is not in a foreseeable set of people that may be affected by the plaintiff actions, then there is no duty of care. In the case of Bourhill this principle was re-affirmed, where a passer-by's injuries was not reasonably foreseeable in a collision; whereas the occupants in the car that was collided with would be. The case of Caparo set forth the modern test for the duty of care which is a three pronged test that follows from the principles in Palsgraff and Bourhill. This test comprises of foreseeability, proximity and fairness, justice and reasonableness of recognising such a duty. Foreseeability is the notion as set forth by Bourhill; proximity is the relationship between the foreseeability; the two individuals; and the fairness of such a duty; and the fairness, justice and reasonableness test is used to limit for public policy reasons liability, i.e. keeping the floodgates closed. This seems to be the situation that was created in the case of Hill; whereby if police were found negligent by not apprehending criminals earlier then ...