However, having a closer look at the situation on e can easily find that everything is fare from being simple.
First of all, saying that Peter was negligent do we mean the same negligent that was expressed by Doris? In other word is Peter as guilty in the accident as Doris is?
Second, if the fault towards others reflects the lack of concern then is the fault of the victim towards his or herself reflect the same lack of concern? Should the guilt of the victim and the injurer viewed from the same point or there is a major difference between those two notions? So, should the legal system use the same standards for victim’s and injurers negligence or should the respective standards for both types of negligence be developed and officially acknowledged as just and right?
Finally, should it be considered that the negligence of both actors lead to the actual harm and the precaution of at leas one of them could have avoided the harm? And is it important that the negligence of the pedestrian created the possibility of the harm only to himself, while motorist’s negligence created the possibility of major harm for others as well. (Symmons, 1991)
The matter of compensation is very important here and to large extend determines the principles of the tort law. From this point of view the injurer had three options:
- Do not cause harm (do not act negligently)
- Cause harm (act negligently) but pay for the harm in the end
- Cause harm (act negligently) but not pay for the harm
Having structured the opportunities like that one can come to the conclusion that those options differ only with the “cost” of consequences. (Bartlett, 1991) In other words, normally society would prefer option 1 to option 2. In fact the society forbids option one and require its members to act according to the first option (Markesinis, 1997).
However, when the cost of option 2 becomes high enough the society might start to prefer option 2 to one or actually acknowledge option as 2 absolutely acceptable.
It is likely that the shift develops as the result in changes of the compensation structure, meaning that the option became acceptable when the victim started to be paid not only for physical damage and treatment cost but also for the right not to be harmed.
On this deficiency view of negligence, a victim has a primary right against the injurer not to be negligently injured. The duty of the injurer to pay damages resulting from the negligent act is secondary to the injurer's primary duty not to act negligently. This view asserts that the injurer's conduct was deficient relative to a standard of reasonable care--specifically, the injurer could and should have taken a specified precaution that, ex ante, would be expected to avoid the injury. The deficiency view of negligence is abstract, and is consistent with a variety of negligence criteria and a variety of normative bases for negligence. But it does rule out some views--including both the economic test of negligence (as usually described) and, perhaps, the prevailing English view of negligence. (Oven, 1995)
Now, it is interesting to examine the guilt of the victim from the same pint of view. Talking about the victim’s negligence, does the society prefer option 1 or 2? Is it acceptable that the victim will contribute to the “cost” of the harm through reduction in injurer’s compensation or the society would prefer that the plaintiff did not act negligently? Or we do accept that the plaintiff had a legitimate right to act negligently? Is his conduct accepted or even encouraged?
From the point of view of that negligence theory of contributory fault the victim should have acted otherwise to avoid possible harm. However, the option of acting in a fault way but then taking responsibility for the harm is also acceptable. (Reynolds, 1997)
Thus, is the recovery cannot be full it is victims responsibility since it is the direct result of his actions and the damage could have been avoided by necessary precautions. It can be named the concept of plaintiff’s strict responsibility and is expressed by one of its supporters in the fallowing way:
Applying the deficiency view to contributory negligence suggests the following preliminary analysis. A true negligence theory of contributory fault supposes that the plaintiff should have acted otherwise, by taking a specified precaution; and if we do not so suppose but still believe that the plaintiff should be disentitled from full recovery, then the plaintiff's disentitlement must rest on a kind of strict responsibility. On such a plaintiff's strict responsibility theory, we are indifferent between the plaintiff taking the precaution, on the one hand, and the plaintiff not taking the precaution but suffering a reduction of damages, on the other; while on a negligence theory, we prefer that the plaintiff take the precaution. I use the term 'plaintiff's strict responsibility' as a conceptual term of art, a default category for any faultless plaintiff conduct that reduces the plaintiff's recovery. (Oven, 1995)
In court practice is a majority of cases that consider the use or non-use of a seat belt. In fact that behavior can be viewed as a contributory to the damage. However, the large number of courts does not consider the behavior as risky one. The reason for this might be the significant extend of the problem or the point of view that the non-use of the seat belt can not be classified as negligence. (Ogus, 1995)
It is likely that the best possible point of view here is that despite there is nothing wrong with the driver’s behavior, not-using of the seat belt increases risk and that self directed risk can be viewed as a negligence and a reason for reduction in recovery against the defendant (Deakin, 1996).
There is another serious concern. According to the tort law logic the plaintiff has a right not to be harmed, the right against defendant’s negligent behavior. And, as an option he has a right for compensation for the damage is the negligence took place and lead to the damage.
But, from the other hand the defendant has a right for compensating only partly if plaintiff’s negligence took place, but he has no primary right not to be effected by the negligence. So in fact, the defendant cannot exercise his rights unless the plaintiff has acted faultily. Moreover, he also cannot exercise his rights unless the plaintiff decides to sue.
It should be a serious concern for the courts while examining the cases the consider compensations and the guilt of both parties. (Dewees, 1996)
Conclusions
Examining the current situation in the field of tort law it is easy come to the conclusion that in many cases the negligence of the plaintiff is not considered by the court. The process of justice execution should include the investigation of the victim’s fault as well as injurer’s fault.
The modern concept of the U.K. tort law should be reviewed in order to take into account the negligence of the plaintiff as well as the defender since, despite the plaintiff has a primary right not to be harmed by someone’s negligee behavior, the defendant does not have an equal right not to be involved in the actions created by plaintiff’s negligible behavior.
All stated above in basically the theoretical and idealistic view on the problem, however, this view does contain large amount of practical information and should be considered with special attention since to large extend it reflects the failures of the current U.K. law thinking and court practice.
Bibliography
David G. Owen Philosophical Foundations of Tort Law Clarendon Press, Oxford, 1995.
Symmons, C. R., "The Duty of Care in Negligence:"Recently Expressed Policy Elements ( 1991) 34 MLR394, 528
Bartlett, A. V. B., "Concurrent Liability after Murphy" ( 1991) 7 PN20.
Markesinis, B. S., "An Expanding Tort Law—The Price of a Rigid Contract Law" ( 1997) 103 LQR354.
Reynolds, F., "Tort Actions in Contractual Situations" ( 1995) II NZULR215.
Deakin, S., "Law and Economics"', ch. 3 in P. A. THOMAS (ed.), Legal Frontiers ( 1996).
Ogus, A. I., "Economics and Law Reform:"Thirty Years of Law Commission Endeavour ( 1995) 111 LQR407.
Dewees, D., DUFF, D. and TREBILCOCK, M., Exploring the Domain of Accident Law:Taking the Facts Seriously ( 1996).