Re: Duty of Care
The plaintiff suffered a serious and incurable herpes-like virus as a result of SA Fisheries not shutting down the abalone farm on the 11th of January. In establishing that the defendant owed a duty of care, the plaintiff must prove,
• On the balance of probabilities that it is,
• Reasonable to impose such a duty upon harm caused,
• By the criminal conduct of a third party.
Reasonable Foreseeability
To impose a duty, it must first be asked whether it was not farfetched or fanciful and it was reasonably foreseeable for a;
• Reasonable public authority,
• Who manages abalone fishing in SA,
• And has the authority to shut down an abalone aquaculture farm,
That a failure to shut down an infected abalone farm,
• Which is subject …show more content…
However, the reasonably foreseeability test is not enough.
Duty
A public authority, such as SA Fisheries, is under no statutory obligation to exercise its power and therefore owes no common law duty of care.
Vulnerability
When SA Fisheries conducted an investigation they attracted a duty of care that requires the exercise of power. This conduct establishes that SA Fisheries had known, or ought to have known of the danger to the health of the class of marine users. Additionally, due to this investigation, SA Fisheries had assumed responsibility to carry out a duty of shutting down the infected abalone farm, for the benefit of the plaintiff. Under these circumstances, SA Fisheries were acting so that other members of the public, who use SA marine waters,
• For recreational and commercial use,
• Near the abalone farms,
Rely on SA Fisheries to take care for their safety. Hence, calling for a positive action on behalf of SA Fisheries. Additionally, as a public authority, SA Fisheries had control over the risk to this class of marine users from contracting ABV. This control is established as SA Fisheries is the holder of a statutory power and therefore a duty of care should be recognised. …show more content…
This class of plaintiffs is extremely broad, and therefore it raises the question of whether there is sufficient clarity in enabling SA Fisheries to calculate the likely extent of the risk and their liability. Additionally, as the class of plaintiffs is weighted more as being indeterminate, it is likely that the burden of a duty will result in an excessive burden on SA Fisheries as it will open the floodgates of claims. Additionally, due to SA Fisheries being a public authority, with a restricted budget, it would be an excessive burden to award the plaintiff
The plaintiff suffered a serious and incurable herpes-like virus as a result of SA Fisheries not shutting down the abalone farm on the 11th of January. In establishing that the defendant owed a duty of care, the plaintiff must prove,
• On the balance of probabilities that it is,
• Reasonable to impose such a duty upon harm caused,
• By the criminal conduct of a third party.
Reasonable Foreseeability
To impose a duty, it must first be asked whether it was not farfetched or fanciful and it was reasonably foreseeable for a;
• Reasonable public authority,
• Who manages abalone fishing in SA,
• And has the authority to shut down an abalone aquaculture farm,
That a failure to shut down an infected abalone farm,
• Which is subject …show more content…
However, the reasonably foreseeability test is not enough.
Duty
A public authority, such as SA Fisheries, is under no statutory obligation to exercise its power and therefore owes no common law duty of care.
Vulnerability
When SA Fisheries conducted an investigation they attracted a duty of care that requires the exercise of power. This conduct establishes that SA Fisheries had known, or ought to have known of the danger to the health of the class of marine users. Additionally, due to this investigation, SA Fisheries had assumed responsibility to carry out a duty of shutting down the infected abalone farm, for the benefit of the plaintiff. Under these circumstances, SA Fisheries were acting so that other members of the public, who use SA marine waters,
• For recreational and commercial use,
• Near the abalone farms,
Rely on SA Fisheries to take care for their safety. Hence, calling for a positive action on behalf of SA Fisheries. Additionally, as a public authority, SA Fisheries had control over the risk to this class of marine users from contracting ABV. This control is established as SA Fisheries is the holder of a statutory power and therefore a duty of care should be recognised. …show more content…
This class of plaintiffs is extremely broad, and therefore it raises the question of whether there is sufficient clarity in enabling SA Fisheries to calculate the likely extent of the risk and their liability. Additionally, as the class of plaintiffs is weighted more as being indeterminate, it is likely that the burden of a duty will result in an excessive burden on SA Fisheries as it will open the floodgates of claims. Additionally, due to SA Fisheries being a public authority, with a restricted budget, it would be an excessive burden to award the plaintiff