Exam (elaborations)
law tnao2
- Module
- Criminal Law (W112)
- Institution
- The Open University (OU)
Exam of 4 pages for the course Criminal Law at OU (.)
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Trixie Whitehouse W112 Civil Justice and Tort LawPI K3490384
Q1. a. Le Navet could be held accountable for the actions they have taken due to
negligence. First there must be a determination of whether the circumstances fulfil all of the
criteria of negligence, including the duty of care owed, the breach of duty, the possibility of
foreseeable loss and damages owed to Jamal. Negligence is ‘the breach of legal duty to
take care by an inadvertent act or omission that injures another’ (Horsey and Rackley
(2021), p. 41) Negligence claims need to be sure that ‘1. A legal duty owed by the defendant
to the claimant to take care of, 2. A breach of this duty by the defendant and, 3. Damage to
the claimant, caused by the breach, which is not considered by the court to be too remote’
(Horsey and Rackley (2021), p. 42). In order to consider whether Le Navet owed a duty of
care, the case of Donoghue V Stevenson (1932)1 should be taken into consideration. Lord
Atkin's Neighbour principle states “that an individual must take reasonable care to avoid
injuring those they can (or should) reasonably foresee will be injured if they do not take such
care” (Horsey and Rackley (2021), p. 36). As a result, Le Navet owes a duty of care to
Jamal.
The next issue is whether Le Navet breached that duty of care. Breach of duty of care is
when an individual will breach duty of care where their conduct falls below the standard the
law has set (Horsey and Rackley (2021), p. 43) In Nettleship V Weston (1971)2 an individual
must fulfil the standard of care is measured objectively by the care to be expected and
experienced (Horsey and Rackley (2021), p. 222). Horatio, the chef, failed to check the
mushrooms and just threw them into the dish to be served to Jamal, which is not expected of
him as a professional and experienced chef. Therefore resulting in breach of duty of care.
Another issue is to determine whether a foreseeable loss occurred. The ‘but for’ test can be
used to establish if a loss occurred was caused by the defendant's conduct or omission and
was foreseeable meaning if the Horatio, the chef of Le Navet, actions were not to occur
would Jamal have experienced the harm. (The Open University, (OU) 2022b 3.1) Jamal later
begins to feel very ill and develops a high fever and is hospitalised. The hospital identified
the mushrooms as being poisonous after being administered drugs Jamal slowly began to
recover. If Hortiao had checked the mushrooms before serving, that would not have caused
Jamal to be poisoned nor hospitalised. As a result La Navets staff brought injury to Jamal
and resulted in a foreseen loss. (OU 2022b 3)
B. Determine whether Mr Keane negligently caused the injury to Jamal. For the claim in
negligence, Jamal must establish the link between Mr keanes breach of duty and the harm
occurred, this connection is called causation and is judged upon the civil standard of proof.
Using “the ‘but for’ test, but for the defendants actions, would the harm have occurred?” (OU
2022b 7.3.1) Factual causation is established as if Jamal had known about one of the pins
being close to a nerve and potentially causing nerve damage that would have led Jamal to
say no to the operation.
Q2. a. Introduction.
This report will examine how appropriate it is to have a category for ‘secondary victims’ in
cases of psychiatric harm. Developing the background of ‘secondary victims’, this being
where a secondary victim suffers psychiatric harm as a result of witnessing someone else
being harmed or endangered. (Horsey and Rackley (2021), p. 112) The definition of
1 Donoghue V Stevenson (1932) AC 562 (HL)
2 Nettleship V Weston (1971) 2 QB 691 (CA)
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