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过失原则的判定:美国留学作业

时间:2016-02-11 08:49来源:www.ukassignment.org 作者:anne 点击:
Principles of negligence
 
Donoghue v史蒂文森(1932),认为人必须采取合理的注意不使他们的邻居合理预见的伤害。二原则是违反注意义务的责任。测试“合理的人”经常被用来评估是否违反了注意义务。一个合理的人是一个需要合理预防伤害的普通人。此外,违反者可能会考虑因素,如熟练的被告,可能的危害和严重性的危害。第三是建立被告人违约与索赔人损害的因果关系。“可供”测试通常适用。如果没有被告的行动,没有损害将发生。最后的原则是违反和破坏性。在车墩一号(1961),它被认为隔离测试如果损害是合理预见。
四原则可以证明是否是疏忽RAJINDER和伊恩马丁。首先,很明显,马丁有责任照顾到健身房会员。所有的人来到健身房是马丁的邻居,因为他们密切和直接影响他的清洁工作在健身房下。由于潮湿的地板,他们很可能被损坏。其次,马丁违反注意义务。他没有采取合理的预防措施。虽然在潮湿的地方,他在潮湿的地方贴上“湿滑”的迹象,提醒人们,这是不充分的。由于地板刚洗过,健身房门开了,严重的伤害更容易发生。这些迹象可能会被健身房的成员所忽略,并没有像他们被放置在潮湿的地区以外的所有危险的湿地区的中间。因此,更多的预防措施将被提出。然而,马丁没有。再次,在马丁的遗漏和RAJINDER和伊恩的伤害之间的因果关系。没有他的不作为,他们将没有受伤。最后,他们的伤势没有远程Martin的过失。损害是可预见的。由于地板刚洗过,很滑。这时,健身房就开始了,人们很容易就摔倒在地上,因此受伤了。此外,招牌没有覆盖所有湿的地方,人们会走在潮湿的地方,没有迹象显示。在这些方面,马丁能预见到伤害的发生。
运用四原则的情况下,它的结论是,马丁的过失责任可以建立。For a person to hold liability under the tort of negligence, some basic principles must be satisfied. The first principle is the existence of duty of care. The duty of care is generally on the basis of the neighbor principle. In Donoghue v Stevenson (1932) , it was held that people must take reasonable care not to cause reasonably foreseen injuries to their neighbors. The second principle is the breach of the duty of care. The test “reasonable man” is often used to evaluate whether the duty of care is breached. A reasonable man is an average man who takes reasonable precautions against injuries. Furthermore, the breach may consider factors such as skilled defendants , likelihood of harm , and seriousness of harm . The third is to establish the causation between the defendant’s breach and the claimant’s damage. The “but for” test is usually applied.  If there is no the defendant’s action, no damage will take place . The final principle is the remoteness of the breach and damage. In The Wagon Mound No1 (1961) , it was held that the test for remoteness is if the damage is reasonably foreseen. 
The four principles can be applied to prove whether Martin is negligent to Rajinder and Ian. Firstly, obviously, Martin had a duty of care to the Gym members. All who came to the Gym is Martin’s neighbors since they were under close and direct influence of his cleaning work in and outside of the gym. They were likely to be damaged because of the wet floor. Secondly, Martin breached the duty of care. He had not taken reasonable precautions against the injuries. Though he put up “Slippery When Wet” signs in the middle of the wet areas to warn people of the wet flooring, it was not sufficient. Since the floor was washed just when the gym gate was opening, serious harm is more likely to occur. The signs might be overlooked by the gym members and did not work as they were just placed in the middle of the wet areas other than all dangerous wet areas. Therefore, more precautions would have been made. However, Martin had not. Thirdly, there was a causation between Martin’s omissions and Rajinder and Ian’s injuries. Without his omissions, they would have not been injured. Finally, their injuries were not remote from Martin’s negligence. The damages were foreseeable. Since the floor was just washed, it was very slippery. And the gym was opening at this time, people would readily fall on the wet floor and hence be injured. Moreover, the signs did not cover all wet floor, people would walk on the wet areas where no signs were put up. In these areas, Martin would have foreseen the occurrence of injury.  
By applying the four principles to the case, it is concluded that Martin’s liability for negligence can be established. 

Bibliography 注解
 
Books
Jack B, Andrew S B, John C & William R A, Anson’s Law of Contract, Oxford University Press, 2010
 
Cases 
Bolton v Stone (1951) AC 850
 
Donoghue v Stevenson (1932) UKHL 100
 
Paris v Stepney BC (1951) AC 367
 
The Lady Gwendolen (1965) 1 Lloyd’s Rep
 
The Wagon Mound No1 (1961) AC 388
  UKHL 100
  The Lady Gwendolen (1965) 1 Lloyd’s Rep
  Bolton v Stone (1951) AC 850
  Paris v Stepney BC (1951) AC 367
  Jack Beatson, Andrew S Burrows, John Cartwright & William R Anson, Anson’s Law of Contract, Oxford University Press, 2010, p128
  Ibid 
  AC 388
 



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