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Provide a 8 pages analysis while answering the following question: The Issues as to Potential Civil Claims under the Torts of Negligence, Assault, and Battery. Prepare this assignment according to the
Provide a 8 pages analysis while answering the following question: The Issues as to Potential Civil Claims under the Torts of Negligence, Assault, and Battery. Prepare this assignment according to the guidelines found in the APA Style Guide. An abstract is required. The first hurdle for Bertie is to establish that Freddie owed Bertie a duty of care. . The test for whether or not there is a legal duty of care was established in the case of Donoghue v Stevenson1. Lord Atkin asserted that a manufacturer owed a legal duty of care to the ultimate consumer of his product. In discussing the duty of care as a legal concept in the tort of negligence, Lord Atkin established the “neighbor” principle.
Lord Atkins continued to define the term “neighbor” in the legal sense as being “persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected.2”
The test for establishing a legal duty of care in tort has developed over the years in order to clarify its parameters and provide guidance on when it will arise. In the leading case of Caparo v Dickman3, the House of Lords confirmed the following three-stage test to determine whether a duty of care exists:
In applying the test to Bertie’s position, it must first be established that it would be reasonable for Freddie to have foreseen that the damage was foreseeable and that Freddie should have taken precautions against this. It is clear that Freddie would have known that by negligently putting salt in Bertie’s tea that this would have caused discomfort and distaste and that the mixture of salt with hot tea may cause injury due to the shock of the taste upon drinking the tea.
Freddie may try to rebut this argument by claiming that Bertie becoming unwell and vomiting is an unusual reaction and therefore not foreseeable. However, the general rule as established in the case of The Wagon Mound (No 1)5is that a defendant must take the victim as they find them. Additionally, this principle (often referred to as the “eggshell skull” rule) was further developed in Smith v Leech Brain & Co Limited6where Lord Parker CJ stated that: “it has always been the law of this country that a tortfeasor takes his victim as he finds him”.
