Negligence and duty of care - Free Essay Example

Duty of care. Duty of care is the first element of negligence and therefore, in order to discuss further on duty of care, one would have to first define the tort of negligence. In Blyth v Birmingham Waterworks Co,[1] the courts defined negligence as an omission of something which a reasonable man would do and the doing of an act which a reasonable man would not do. In Heaven v Pender,[2] the courts held that the presumption of duty of care arises when one person is placed in a position with regard to another person or property, it is in ordinary sense that if he does not use reasonable ordinary care in his conducts, he would cause danger or injury towards the other person or property. Therefore, ordinary care is required to prevent the occurrence of such danger. In Stovin v Wise,[3] the courts explained that generally there is no duty to rescue a stranger from danger. The duty mentioned above is regarding duty that is imposed by law or in other words, it is a legal duty. Test to determine the standard of duty of care. There are a few test that is used in determining the existence of duty of care. The primary test is the neighbour principle established in the well-known case of Donoghue v Stevenson.[4] In this case, Lord Atkin laid down that the rule that you are required to love your neighbours becomes a law by itself and it requires one to take a reasonable care to prevent any acts or omissions that can be reasonably foreseen to be likely to cause injury to your neighbour. The question posed to this principle is regarding who is oneà ¢Ã¢â€š ¬Ã¢â€ž ¢s neighbour in law. The courts held that neighbour in law is someone who is directly affected by oneà ¢Ã¢â€š ¬Ã¢â€ž ¢s act or omission. It is a reasonable manà ¢Ã¢â€š ¬Ã¢â€ž ¢s test whereby the courts would have to determine whether a reasonable man would foresee that his conduct would affect the plaintiff adversely. If the answer to this hypothetical question is yes, then the plaintiff is considered to be his neighbour and he owes a duty of care to the neighbour.[5] It is essential to note here that the neighbour principle requires the defendant to be a foreseeable victim and thus, in order for the defendant to be a foreseeable victim, there has to be a close proximity. Therefore, the neighbour principle requires the plaintiff to be of a close proximity with the d efendant. The plaintiff would not be a foreseeable victim if there is no proximity between the plaintiff and defendant. In the case of Home Office v Dorset Yacht Co Ltd,[6] the courts held that the principle laid down in Donoghue v Stevenson should be regarded as a milestone in determining whether there exist a duty of care. This principle significantly assist the development of the law of negligence. Prior to the case of Donoghue v Stevenson, there was vagueness in the law regarding civil liability for carelessness.[7] In an 1889 textbook, there was a list containing fifty-six various duties of care.[8] Therefore, the judgment in Donoghue v Stevenson brought an end to the chaotic situation and had introduced the law of negligence as a separate civil wrong. The next test used by the courts to determine whether duty of care is established is the Anns test laid down by the courts in Anns v Merton London Borough Council.[9] This is a two-stage approach laid down by Lord Wilberfor ce whereby the first is to determine whether there is a relationship of proximity between the alleged tortfeasor and the person who had suffered the loss. If it foreseeable that the carelessness of the tortfeasor would lead the other party to suffer damage, then a duty of care would on prima facie be established. The second stage of this test requires the court to take into account any considerations that may negate the said duty or to reduce and limit the scope or group of persons that the duty will be imposed upon. This two-stage approach in essence is to determine whether it is reasonable to foresee that the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s act or omissions will cause any damage to the plaintiff. If it is reasonable to foresee that the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s act would cause harm to the plaintiff, then there exist a presumption of duty of care.[10] This test receive heavy criticism in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson Co Ltd.[11] The courts in th is case held that the neighbour principle laid down by Lord Atkin should be proved before the duty of care is presumed to exist but the scope of the duty depends on the facts of the case. The courts should consider whether the duty of care imposed on the defendant is just and reasonable. In Curran v Northern Ireland Co-ownership Housing Association Ltd,[12] the learned judge, Lord Keith, held that the Anns test has been given more importance than it should have been given and held that the test need not be applicable in future cases in establishing the duty of care. The third test used in determining the duty of care is the Caparo test which is derived from Caparo Industries plc v Dickman.[13] In this case, there were three factors that is needed to be fulfilled to establish duty of care. The first is the courts must determine whether the damage caused is reasonably foreseen, the second is whether there is any policy to negate the duty of care and the third is whether it is just and reasonable. If this requirements are fulfilled, then duty of care is established.[14] It is important to note here that all three elements under the Caparo test needs to be fulfilled in order for duty of care to be established. Development in Malaysia. In Malaysia, the courts have used all of the above test. However, the test that is currently used by the courts is the three stage test which is the Caparo test. This can be seen in the case of Majlis Perbandaraan Ampang Jaya v Stephen Phoa Cheng Loon Ors.[15] In this case, the Federal Court had referred to the Caparoà ¢Ã¢â€š ¬Ã¢â€ž ¢s case do determine whether duty of care exist. The issue that arises in this principle is whether this principle only applies to economic loss or it may extend to all situations. The courts used the foreseeability test and held that this test applies to all situation. The courts only had to determine whether the duty of care which is imposed upon the defendant is just and reasonable. The cour ts went on stating that it would be rare for the outcome of the test to be not just and reasonable. This test is used in a more recent Malaysian case which is Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd.[16] In this case, the courts reiterated that the standard of care to determine negligence is that of the reasonable man and it is an objective test. Another recent case is the case of Jordan Saw Yu Huan v Low Suan Chuan Ors.[17] In this case, the high court applied the Caparoà ¢Ã¢â€š ¬Ã¢â€ž ¢s test and the courts were of the view that it was just and reasonable to impose such duty of care upon the defendants and held that the defendants in this case had breached such duty of care. Therefore, it is clear that the recent development in Malaysia regarding the standard of care required to establish duty of care is more inclined towards the three-stage approach which is commonly known as the Caparoà ¢Ã¢â€š ¬Ã¢â€ž ¢s test. The courts in Malaysia had followed the Caparoà ¢Ã¢â€š ¬Ã¢â€ž ¢s test because this test requires that the damage caused to the plaintiff to be reasonably foreseen by the defendant. The defendant would not owe a duty of care if he cannot reasonably foresee the damage. Therefore, this test more straight forward as compared to the other test laid down earlier. [1](1856) 11 Ex 781 at 784. [2](1883) 11 QBD 503 at 507. [3][1996] AC 923 at 930-931. [4][1932] AC 562 at 580 (HL). [5]Norchaya Talib, Law of Torts in Malaysia (3rd edn, Sweet Maxwell Asia 2011) 98. [6][1970] AC 1027. [7]Dato Mohd Hishamudin Yunus, à ¢Ã¢â€š ¬Ã‹Å"JUDICIAL ACTIVISM à ¢Ã¢â€š ¬Ã¢â‚¬  THE WAY TO GO?à ¢Ã¢â€š ¬Ã¢â€ž ¢ [2012] 6 MLJ xvii. [8]Thomas Beven, à ¢Ã¢â€š ¬Ã‹Å"Principles of the law of negligenceà ¢Ã¢â€š ¬Ã¢â€ž ¢ (1889). [9][1978] AC 728. [10]Norchaya Talib, Law of Torts in Malaysia (3rd edn, Sweet Maxwell Asia 2011) 100. [11][1984] 3 All ER 529 (HL). [12][1987] 2 All ER 13, 710. [13][1990] 1 All ER 568 (HL). [14]Norchaya Talib, Law of Torts in Malaysia (3rd edn, Sweet Maxwell Asia 2011) 106. [15][2006] 2 MLJ 389 (FC). [16][2013] 5 MLJ 360 (CA). [17][2013] 4 MLJ 137.

I Am A Great Guy Who Always Been Labeled With The Word ``...

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Each author efficiently shows their main point; Thoreau deals with justice as it relates to government, he asks for,†not at one no government, but at once a better government.†(Paragraph 3). King believed,† injustice anywhere is a threat to justice everywhere. (Paragraph 4). Each essay shows a valid argument for justice, but KingsRead MoreHenry David Thoreau Resistance To Civil Disobedience Analysis1508 Words   |  7 Pagescivil government by Henry David Thoreau is an essay written about his opinion on opposing the government that was taking control of people’s rights, motivating his disagreement of slavery and the Mexican-American war. Mahatma Gandhi, a leader who fought for the Indians independent movement against British. Lastly but not least, Martin Luther King Jr., the leader of the civil rights movement. Within the tree leaders, Henry David Thoreau, Mahatma Gandhi, and Martin Luther King Jr. their connections

Prevalence Effect Of Personality Disorder â€Myassignmenthelp.Com

Question: Discuss About The Prevalence Effect Of Personality Disorder? Answer: Introducation The following assignment is a brief study of psychological disorders in Canadians. It will focus on a newspaper article relating personality disorder and its connection to the chapter named Personality Disorders in the fifth edition of Abnormal Psychology, An Integrative Approach. A critical discussion is here regarding how the article confirms or contradicts the identified section of the text and how this makes people understand some aspects of mental disorders. The further issues and the weakness of the article are also mentioned in the study. The assignment will conclude by reflective thoughts demonstrating thoughtfulness and insightfulness. The case of Leslie Black in attacking a woman named Marlene Bird, and setting her in fire is a rare example of mental disorder (Thestar.com, 2017). The incident happened in an alley of Prince Albert, Sask in June, 2014.Black was arrested for his involvement in the beating, burning and sexual assault of Marlene Bird. Bird lost her two legs and much of her eyesight due to the accident. Leslie black was arrested and sent for psychiatric treatment. It is told that he is suffering from anti-social personality disorder and he needs a long-term therapy. The condition of Black has its root in the chapter 12 of the book, Abnormal Psychology, An Integrative Approach. In the section named Antisocial Personality Disorder (pp 443), it is mentioned that the people suffering from such disorder are puzzling ones. They lack conscience and empathy in them and do what they want by disregarding social norms. They do not feel regret as they present themselves in an aggressive manner. They can lie and cheat as well. People from antisocial personality disorder background may indulge in crime often that is harmful. This disorder starts developing in childhood and is clearly visible in adulthood (Tyrer, Reed Crawford, 2015). It is reported by the psychiatrists after investigating Leslie Black that he has done the crime out of personality disorder. He was a witness to his mothers murder that happened on his ninth birthday. It creates a sense of post-traumatic disorder that is deep rooted in his mind since childhood. His behaviors towards Bird is brutal (Nationalpost.com, 2017). He claimed that he did not set Bird on fire though Bird and her lawyer are against this statement. Sometimes it comes to the media that Black had made an apology that may prove his guilty. The article reflects on many aspects of mental disorders. People became aware of such diseases. They are feared after knowing the brutality. Implication of mental health care is needed in this respect. 40.5% patients have received the treatment over the world (Corrigan, Druss Perlick, 2014). There is argument regarding the mental state of Black. Court needs time to decide whether Black is a dangerous offender or not. In order to avoid further is sues, Police needs to investigate the background of both of them to come to the right conclusion. In a state of antisocial personality disorder, the patient has no sense of regret, as stated above. There is a mention of apology by Black that arises questions regarding the authentic value of the article (Globalnews.ca, 2017). It can be said in the conclusion that one can learn some crucial things from the article. The most surprising part is that the court has taken long time to come to a conclusion. Antisocial personality disorder is a term that may not be known to all. The case gives light on this aspect and people become aware of such incidents. This case study is a perfect example of how media works in the society and how it affects the health issues of a country. References Corrigan, P. W., Druss, B. G., Perlick, D. A. (2014). The impact of mental illness stigma on seeking and participating in mental health care.Psychological Science in the Public Interest,15(2), 37-70. Globalnews.ca. (2017).Judge reserves dangerous offender decision on Leslie Black in Marlene Bird case.Global News. Retrieved 18 September 2017, from https://globalnews.ca/news/3569864/dangerous-offender-decision-leslie-black-marlene-bird/ Nationalpost.com. (2017).Judge reserves dangerous offender decision on Leslie Black in Marlene Bird case.National Post. Retrieved 18 September 2017, from https://nationalpost.com/pmn/news-pmn/canada-news-pmn/judge-reserves-dangerous-offender-decision-on-leslie-black-in-marlene-bird-case Thestar.com. (2017).Saskatchewan man who attacked woman, set her on fire wont be declared a dangerous offender, judge rules | Toronto Star.thestar.com. Retrieved 18 September 2017, from https://www.thestar.com/news/canada/2017/08/30/saskatchewan-man-who-attacked-woman-set-her-on-fire-wont-be-declared-a-dangerous-offender-judge-rules.html Tyrer, P., Reed, G. M., Crawford, M. J. (2015). Classification, assessment, prevalence, and effect of personality disorder.The Lancet,385(9969), 717-726.

Under Armour (Case 26) free essay sample

Technological Hot and sweaty t-shirts are a thing of the past. New and innovative material for making clothing has changed the game for sports apparel. Now, high-tech fibers are woven into shorts, shirts, jackets and more that can adapt to and regulate the body’s temperature. This advancement is huge for athletes of all kinds, allowing increased performance and endurance. New â€Å"water-resistant† material and fibers that prevent ultraviolet and infrared rays are among the long list of technological advancements taking place in the sports apparel industry. Demographics Performance sports apparel has not always been so widespread. It started off as being primarily utilized by major sports teams, but over the recent years the market has extended to accommodate nearly all sporting activities. Not only are all of the major sports teams using some sort of performance apparel but also active lifestyle consumers and youths. Research has shown that nearly 80% of activewear is worn for non-sports activities. Another study determined that more than 85% of athletic footwear is being used for a different sport other than what they were made for. Only sports teams and sporting activities used sporting apparel until recently. Now sporting apparel extends to men, women and children of all shapes, sizes and walks of life. Economics The sports apparel industry has grown exponentially in the past few years mainly due to heavy marketing and advertising, technological advancements and a vast catalog of new items in new product categories. The ever-prolific sporting world has seen consist Political/Legal Large companies in this industry must stay up to date with the most modern clothing line and accessories in order to be competitive. With new products  and materials come legalities to maintain dominance over specific innovations. Outsourcing production and manufacturing also plays a huge role in legal policy’s and political conflicts. Sociocultural and Global Climate has a big effect on when, where and how often you can exercise or train. With innovative clothing lines that can repel water, prevent harmful rays from the sun and moderate body temperature, come new possibilities to train anywhere, anytime and for longer periods of time. And sports apparel is available to all who seek increased performance. Porter’s Five Forces Model—Apparel Supplier Power (High) Businesses in the performance apparel industry establish credibility with their suppliers. The suppliers use new and technologically advanced materials and create highly differentiated products; thus, giving them more power over their buyers. Barriers to Entry (High) A few very large sports apparel companies, i.e. Under Armour, Nike, Adidas, Columbia, that have been well established for many years dominate the market. Over the years, the larger companies have been able to establish themselves through brand recognition, advertising and various distribution channels. Thus, a company trying to start off in this industry would struggle initially but could profit in the long run due to fewer competitors. Competitive Rivalry (Moderate) The large companies are constantly inventing or reinventing their product lines depending on the consumer market and modern design. Due to a large degree of differentiation in performance and quality, there is less rivalry among performance apparel businesses. Threat of Substitutes (Moderate) There are a few substitutes when it comes to performance apparel. Only a few have been at the cutting edge of technological advancement and quality  enhancement by which they have established themselves as being among the top leaders for quality and performance. However, there is still a major threat of substitution for cheaper alternatives if the economy were to weaken. Buyer Power (High) Customer buying power for apparel is strong due in part to the availability to switch to other products at little, if any, cost, but mostly due to the percent of revenue that the large companies sell from their individual product segments. If a company has a large percentage in a single product category, they are more vulnerable than a company that has a well-diversified combination of products. Competitive Analysis Under Armour has several large competitors; the largest being Nike, Adidas and Columbia Sportswear. These companies are similar in that they all stress product innovation, advertising and sponsorships. Adidas is broadly focused in all sporting categories but fails to stand out. Columbia is known almost solely by its winter gear, limiting its growth potential and creating strong seasonality trends. Nike strives to be the best in every segment while Under Armour’s goal is to be a leader in each process of its product development, concentrating on quality over quantity. An advantage for Under Armour is that it is focused more on improving its brand and unique products, licensing other items and accessories through independent manufacturers. Internal Analysis Under Armour is continually improving their apparel line and broadening there market. The company has been growing at a substantial rate, 30.5% annually over a 5-year period, largely due to the ambition of Kevin Plank, founder, and also to heavy marketing and promotions. Plank attributes the success of the company to brand recognition and the ability to market to all consumers. Under Armour makes â€Å"head-to-toe† apparel for anyone during any season. It has pushed its image into as many stores as it can, reaching college universities and numerous distribution channels. Suggestions to the Firm Over 80% of Under Armour’s revenue comes from the sale of its apparel line. While it means that it has been very successful in this segment, there needs to be more diversity to increase competitiveness and decrease supplier power. While creating a footwear line will aid in Under Armour’s aim to create a full apparel product line and increase the pressure on competitors, many challenges will need to be overcome in order to penetrate this product market. Under Armour will need to reinvent and reengineer its footwear line. Alternative Strategies Expanding the product line to diversify its product portfolio may dilute Under Armour’s image and label thus causing consumers to deviate from premium-priced products. Alternatively, Under Armour could focus more primarily on the development of its footwear product and increase those sales. This option will be very costly and challenging due to the huge market players that already have dominance in footwear, i.e. Nike and Adidas. I suggest Under Armour pursue other product opportunities as well as the footwear to put more pressure on its competitors and to keep the focus on quality and performance rather than quantity.