Negligence and the Law of Torts

A tort is basically a civil wrong. A civil wrong is an act, intentional or otherwise, the consequences of which include, but are not limited to damage to life or property, injury to a person, emotional or mental trauma, loss in reputation, etc. The injured party is entitled to get compensation from the party that was responsible for causing the injury. The objective of the law of torts is to help the injured party receive compensation and legal remedy in case their civil rights have been violated.

Tort law is completely independent of the law of contracts, and as such, to claim damages under the law of torts, a contractual obligation is unnecessary. There is a major difference between tort law and criminal law. As said by Arthur and Barnes, 2003, “While in criminal law, the offence is against the State and the State is the plaintiff, in tort law, on the contrast, the offence is against a person and that person is the plaintiff. ” This means that all crimes that come under criminal law are committed against the State, and the wrong doers are prosecuted by the State.

The wrongs that come under the tort law, however, are committed against specific individuals, by violating their civil rights, and as such, these individuals are the plaintiffs. Shapo, in 2003, defined the law of torts as “a body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. ” This is a well-rounded definition of the law of torts, and addresses most of the major concerns, apart from its objectives. These objectives are discussed below.

THE ORIGIN OF THE LAW OF TORTS The law of torts did not originate from statutes that had been passed by legislatures, because plaintiffs did not turn to it as a source of law. Instead, it derived from the common law courts, also known as judicial decisions. By trying, hearing and passing judgments in cases related to the behavior of people with each other, when not bound by any contracts, the courts developed the foundation of the law of torts. When individuals are not bound by any contracts, they are held responsible for the consequences of their actions by the law of torts.

People who cause injury can be made to compensate the injured party. Before the law of torts came into being, liability only existed between parties who had entered into contracts with each other. This can be seen in the English case of Winterbottom vs. Wright[1]. In this 19th century case, the Postmaster-General employed the plaintiff, Winterbottom to drive a mail coach, which was to be supplied by the same Postmaster. The defendant, Wright, was also contracted, for the maintenance of the coach. While Winterbottom was driving, the coach fell apart, injuring him.

According to him, Wright had completely failed to perform his duty, as was specified in the contract. His manner was grossly negligent, and that he, Winterbottom, deserved to be compensated for the same. The Judgement of the case is as follows: 1. There was no contract between the plaintiff and the defendant. 2. If the plaintiff had the ability to sue over this case, then “there would be unlimited actions” and this would be adverse effects on society, as the courts would be overrun with frivolous cases, and the extension of liability that would follow. 3.

No fraud had been committed, unlike in the case of Langridge v Levy [2], which the plaintiff referred to. 4. It was obvious that the plaintiff had been wronged, but the judges were not inclined to award damages out of sympathy towards him. In the next century, judges started to realize that in cases where the manufacturer causes injury to a party by virtue of damaged goods, if there were contractual requirements, then the consumers could easily be taken advantage of. A general duty of care towards those who could be forseeably affected by a person’s actions was seen as important.

The contractual requirement was also rendered inessential. This was how the law of torts originated. OBJECTIVES OF THE LAW OF TORTS The law of torts, at its most basic level, has four objectives. These objectives are as follows: 1. Appeasement: When a person is wronged by another party, he seeks some form of compensation for said wrong. 2. Justice: The law of torts seeks to compensate the victim and exact vengeance against the wrongdoer. 3. Deterrence: Tort law seeks to prevent the criminal from repeating his crime. 4. Compensation: The wrongdoer is made to pay compensation for his responsibility in causing the harm.

DIFFERENT TYPES OF TORT 1. Intentional Torts: a. Assault: An act that intentionally creates an apprehension of an imminent harmful or offensive contact. b. Battery: Intentionally causing harmful or offensive contact with a person. c. False Imprisonment: Restraining a person in a bounded area without justification or consent. d. Trespass: An unlawful intrusion that interferes with one’s person or property. 2. Negligence: a. Duty of care: Individuals are expected to conform to a reasonable standard of care if they are performing activities that could possibly harm others. b.

Breach of Duty: Negligence will not result in liability unless the plaintiff established that he was owed a duty of care by the defendant, and that duty was breached. c. Factual Causation: Whether or not a given injury would have occurred without a breach of duty. d. Legal causation or remoteness: It is possible that the liability may be so remote that it could not be foreseen or prevented by the party. e. Damages: A monetary valuation of the harm done. 3. Strict Liability Torts: a. Product Liability: Manufacturers, distributors and sellers are held responsible for any injuries caused by their product.

In this report, the topic of Negligence shall be discussed. NEGLIGENCE Negligence essentially means careless conduct. In the legal sense, it concerns injury or damage caused to a person due to carelessness on the part of someone. Negligence depends on the breach of duty of care that was owed by one person to another. There are three elements required in a case of negligence: Duty of care, breach of duty and damage. These are discussed below. DUTY OF CARE The idea that a person owed his neighbors a duty of care first came into existence in the case Donoghue vs.

Stevenson[3]. The plaintiff, Mrs. Donoghue, on the 26th of August 1928, drank a bottle of ginger beer in a cafe in Paisley, Renfrewshire, Scotland. After drinking some of the beer, when the remainder was poured out, a dead and decomposed snail was seen floating in it. Mrs. Donoghue fell ill once she realized this, and started complaining of abdominal pains. Later, she was diagnosed for shock and severe gastroenteritis. The ginger beer had been manufactured by David Stevenson, and was marketed in opaque, brown bottle. Mr. Stevenson was sued by Mrs. Donoghue.

The case was heard by the House of Lords, and the majority, consisting of Lord Atkin, Lord Thankerton and Lord Macmillan ruled in favour of the plaintiff. BREACH OF DUTY Once it has been established that the defendant owed a duty of care to the plaintiff, it also need to be proven that there was a breach of that duty. This happens when the defendant falls below the standard of care appropriate to the duty. Breach of duty is measured objectively by the ‘reasonable man test’. The reasonable man is the ordinary person performing the particular task: he is expected to perform it reasonably competently.

For a breach of duty to occur, the court will take four factors into account: – The degree of risk involved: the greater the risk, the more the defendant has to take care. (Bolton v Stone 1951). – The cost of precautions: the courts will see how high the risk is involved, and then take into account the expense of taking precautions to prevent that risk (Bolton v Stone and Latimer v AEC). – Potential seriousness of injures: so if there is a very high risk of serious injury, the more the defendant needs to be very careful (Paris v Stepney B.

C. 1951). – The importance of the activity: in an emergency, sometimes it is not possible to reflect, think of a possible risk (Marshall v Osmand 1982). DAMAGE CAUSED Having established a duty of care, and a breach of that duty, the claimant will then need to show that damage has been caused o them, and that loss is not too remote. A person will only be liable for damage, which they have actually caused the victim. The same rules apply to damage to property. CAUSATION Would the damage have happened had it not been for the breach of duty?

This can be seen Barnett v Chelsea and Kensington Hospitals (1969) where three night-watchmen went to Accident & Emergency complaining of sickness after drinking tea made by a fourth man. A nurse telephoned the doctor on duty, who did not come to examine the men but instead sent the men home and told them to go and see their own doctors in the morning. On returning home, one of the men died a few hours later from poisoning. His widow sued the hospital claiming that the doctor was negligent in not examining her husband. Evidence showed that by the time the husband had called in to the hospital it was already too late to save his life.

This meant that his death was not a result of the doctor’s breach of duty and so the claim failed. FORSEEABILITY The claimant has to show that the type of damage was reasonably foreseeable. This is seen in the case of The Wagon Mound (1961) where fuel had negligently spilled onto water in a harbour. Two days later the oil caught fire because of wielding work being done on another ship. The fire spread to the claimants wharf and burnt it. The damage suffered was not reasonably foreseeable. THIN SKULL RULE This rule means that the defendant must take his victim as he finds him.

So, if the type damage is reasonably foreseeable, but it is much more serious because of something unusual about the claimant, such as a thin skull, then the defendant is liable. In this situation the damage is not too remote. This is shown in the case of Smith v Leech Brain and Co. (1962) where because of a defendants negligence, a man was burnt on the lip by molten metal. The burn caused him to develop cancer and his widow claimed against the defendant and because the burn was a foreseeable injury, he was also liable for the man’s death.