Risk and Duties of Protection

Negligence in tort is a term that escapes complete definition. It includes carelessness and lack of foresight, however the significance of negligence in tort is much broader. In law, it is defined as “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. ” A. Elements of Negligence

To be liable for torts, all the elements defined by law should be present. The elements of torts are (1) Duty of care – that the law imposes a certain degree of care in the performance of an act; (2) Breach of Duty – there was a breach of this duty to take due care on the act taken; (3) Damage Caused by Defendant’s Breach – there must be damage caused to the party by the defendant, this element is extremely important since in certain instances, there are cases where there was injury but no damage.

The best evidence for this is when the claimant proves that harm would not have occurred ‘but for’ the negligence of the defendant. The most important of the element is the breach of duty, in order to prove the breach, evidence which infers a lack of reasonable care on the part of defendant must be presented, however, in certain instances the doctrine of res ipsa loquitur  is controlling. B. Defenses in Tort

The presence of the elements does not automatically impute liability on the tort-feasor, in order to account for the actual liability of the defendant, the circumstances surrounding the act must also be examined carefully. Due care must be used in analyzing all the circumstances of the case since in tort cases, there are several defenses that the defendant can raise in order to mitigate his liability or be completely absolved from it. The most common defense is the exercise of due care when performing the action.

If this defense is present the first element of torts is negated and thus no liability may be claimed from the defendant. Another defense that is available to the defendant is the contributory negligence of the injured person, “contributory negligence is failure by a person (typically the plaintiff) to take reasonable care for his or her own safety, which contributes to the harm the person suffers. ”   Also available to the defendant is the doctrine of proximate cause.

The proximate cause, sometimes called the immediate cause of the injury must be the actions of the defendant or his omission to exercise the diligence that is required of his act. The doctrine dictates that if an effective intervening cause was present from the action of the defendant until the cause of the injury, then the defendant cannot be faulted for the resulting injury. This is applicable in cases where although the defendant was guilty of negligence, the injury caused to the injured person was not the direct effect of the omission of care of the defendant.

However, some cases are ruled in favor of the claimant when the latter is able to prove that the defendant’s breach of duty caused the harm or was a material contribution. Finally, the assumption of risk is also considered a defense, a person who knowingly and voluntarily places himself in a situation wherein he or she may suffer injury, normally in relation to his work, assumes the risk that comes with his action. Case Study

In applying all the foregoing principles in the case at bar, every person involved in the action and their consequent actions must be carefully analyzed. A. Gerald Gerald is the main tort-feasor in the case, because of his negligence to check whether the wagon was securely fastened to his car, he has already incurred liability for all the injuries that might be caused by his omission, however, the actual liability will be tempered subject to the injured person’s fault or some intervening cause.

The exact liability of Gerald in relation to all the characters in the case shall be discussed in their respective sections. B. Bod Bod was the first person hit by trailer where the donkey was placed, Gerald is liable for the resulting injuries to Bod and for the brand new moped that was destroyed, however, Bod is also guilty of contributory negligence. It is important to note that Bod was only wearing a shell suit rather than leathers and a helmet.

The lack of proper attire contributed to his injuries because helmets are required in order to protect the head of the rider. In this case, Gerald must pay for the brand new moped and the hospital bills of Bod, however, when Bod files for damages, the court shall look into the above-mentioned circumstance and shall not place all the blame on Gerald. C. Missy In Missy’s case, the damage was actually caused to her instructor and to the latter’s car.

The actual cause of the damage was not Gerald but rather it was Missy’s action that caused the damage and injury. However, as will be further discussed, the instructor, in agreeing to ride with Missy has assumed a risk of accidents that may be caused by first-time drivers. In the case at bar, instead of braking, Missy actually hit the acceleration pedal which caused the damage and her instructor’s injury. However, even if Missy was at fault, she cannot be wholly blamed for the incident.

It is worthy to note that she was just on her first day of driving, therefore, accidents are sometimes inevitable with first-time drivers, in this wise, considerations that the vehicle used and the person injured was the instructor and the vehicle of the instructor. The instructor when he took Missy out for her first drive knew full well of her circumstances, implying that he was informed of the possible accidents that may arise during a person’s first time drive.

In a nutshell, the person liable is Missy herself, however, her liability shall also be shouldered by Gerald since his trailer might have caused the disaster, and at the same time, her liability shall be mitigated by the nature of her instructor’s work wherein the latter assumes the risk of accidents caused by first time drivers. D. Dr. Jones Dr. Jones in this case is the person completely liable for Bod’s death. His profession calls for extreme caution in diagnosing a patient. Gerald cannot anymore be faulted for Bod’s death since this is an example of an effective intervening cause. In the case at bar, Dr.

Jones did not take any tests to diagnose Bod’s blood nor did he check the previous medical records of Bod, he just gave Bod medication without even checking the medical history of his patient nor did he question Bod of any disorders he may have, this was very negligent on the part of a doctor and is a breach of the great care needed by his profession. It is therefore submitted that Dr. Jones be solely liable for the death of Bod. E. Catherine In Catherine’s case, Gerald must pay for the carrots that the donkey ate, Gerald was in legal possession of the donkey when Princess destroyed Catherine’s carrots.

However, the claim of 500 cannot be sustained since the prize money was for the best carrot, whereas, Catherine’s carrots were not sure to win the contest.

BIBLIOGRAPHY

Alderson B., Blyth v Birmingham Waterworks Co. (1856) Barnett v Chelsea & Kensington Hospital (1968) RevofNeg. Contributory Negligence, Assumption of Risk and Duties of Protection. Retrieved February 15, 2008 from http://revofneg. treasury. gov. au/content/Report2/PDF/ContribNeg. pdf. Scott v London & St Katherine Dock Co (1865) Wilsher v Essex AHA (1988)