Tort Law Essay Case Study Example | Topics and Well Written Essays - 2500 words

Tort Law Essay - Case Study Example It is also necessary for the individual to show that they have suffered damages. The first and critical argument put forward by DURU is that, under the English negligence law, they did not owe a duty of care to Russell. This brings into question the first element of the tort of negligence in that there must be a duty of care before any claim of negligence can be substantiated. The initial notion of duty of care was established in the case of Donoghue v Stevenson1, where it was found that a duty of care should exist, based on the neighbour principle. In this case, a decomposed snail was found in the drinks bottle of the claimant, but there was an argument as to whether or not the manufacturer should be seen as liable, as the claimant had not themselves purchased the bottle. It was found, in this case, that they could be deemed to be negligent and that the claimant would have a claim based on the principle that a duty of care existed to their 'neighbour'. A more modern approach has now been taken by Caparo v Dickman2, where a threefold test was established and it would be this test that DURU would be required to use in forwarding their first defence. In accordance with this case, a threefold test must be passed in order for a duty of care to be established. Therefore, if DURU could show that these are not met, they would rightly be able to rely on the defence that no duty of care existed. The threefold test is as follows: The harm suffered must be deemed 'reasonably foreseeable' as a result of the way in which DURU conducted itself; that there must be a relationship of sufficient proximity between DURU and Russell; and finally that it is 'fair, just and reasonable' for the duty to be imposed on DURU. The test of proximity remains reliant on the test laid out in Donaghue v Stevenson and as stated by Lord Atkin as part of this case. Lord Atkin stated that a duty should be owed to 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected'. Other queries have been raised in terms of whether or not it would be reasonable to expect DURU to take some responsibility for the death of Russell. Based on the 2009 Act, DURU has assumed responsibility to provide one to one care in a structured manner to those suffering from drug addiction. In signing Russell up as a patient, a relationship has been established. There is a general concept that there is no positive duty on everyone to undertake certain actions; however, due to the statutory powers given to DURU and the subsequent decision to take Russell on as a client, it is likely to be deemed that a duty of care exists towards Russell, and, for that matter, any other patient taken on by DURU3. Furthermore, the courts are likely to take public policy and interest into account when deciding whether or not a sufficient proximity exists. Based on the underlying reasons for the establishment of DURU and the fact that the organisation has been establis