Describe the elements of the Tort of Negligence and critically analyse their practical applications.

Torts could be intentional or could arise out of negligence: people are responsible for injury caused to others not only as a result of their willful acts, but also by the want of care (lawschoolhelp). Tort of negligence arises out of the breach of a duty of care which is owed by people to others (Wikipedia).The principle of the tort of negligence is that all individuals should “exercise the standard of care that a reasonable person would exercise in similar circumstances”, in order not to hurt others (lawschoolhelp). The tort of negligence, in contrast to intentional torts, does not require intent from the side of the tortfeasor, nor knowledge or belief by the tortfeasor of what the consequences of his of her action or non-action are. The tort of negligence only requires that the act or omission has to create a risk as a consequence of it, and that this risk is foreseeable by a reasonable person in the same situation (torts).

The elements that make the tort of negligent valid or actionable are that 1. it should be proved that the tortfeasor owed the claimant a duty of care, 2. that by negligent conduct the defendant broke this duty of care, 3. this negligent conduct caused a consequential legally actionable damage to the claimant, and that 4. there is a between the negligent conduct and the resulting injury (Common law, 147).

Duty of care is defined as the duty of people to exercise “reasonable care” when dealing with others. Reasonable care is defined as the degree of care that a reasonable person should, not necessarily would, act with, and this is determined by tort law.

The breach of duty of care could be tested by asking whether a person acting with reasonable care, or “prudence”, who would have been in the same situation as the defendant and with the same knowledge, might have been able to foresee that someone would be injured by or as a result of his or her action or inaction. If the answer is a yes, then not avoiding that action or inaction is negligence (negligence, lawschoolhelp). A breach of duty occurs if the defendant realized that the claimant was being put at risk by his or her action and continued in it, which is subjective negligence and also if the defendant did not foresee that there is a risk to the claimant, but a reasonable person with ordinary prudence would have foreseen the risk, which is objective negligence (negligence, Wikipedia). A “reasonable person” is defined by the law to be attentive, aware of his or her environs, careful, conscientious, even tempered, and honest (Tort, Iolis).

The Caparo v Dickman (1990) case introduced the threefold test to the duty of care, which has to prove that the harm was 1. reasonably foreseeable, 2. there must be a relationship of proximity and 3. “it must be “fair, just, and reasonable” to impose liability” (Wikipedia).

This is a preview of the whole essay

Furthermore, the law of negligence states that individuals (the claimants) have the right to assume that others have “good conduct and normal faculties”, which is the right to assume that every person will perform his or her duty of care. It is not negligence for a person to fail to anticipate an accident which “can occur only as a result of violation of law or duty by another person” except where it is reasonable to think otherwise (lawschoolhelp). The breach of duty in the tort of negligence includes rules that apply to certain cases, such as for example the duties of professionals. An individual “who has knowledge, skill or expertise superior to that of the ordinary person” will be held for a standard of care expected of a reasonable person with the same knowledge, skills or expertise, and failure to perform the standard of care of a “reasonable professional” will make the professional liable for ‘professional malpractice’ or ‘negligent misstatements’ which cause financial loss (tort, Iolis). This principle evolved to state that liability for careless statements arise if there is a special relationship between the parties, and for this relationship to exist, the person who made the statement should have done so in a professional capacity making it likely that others will rely on the statement. There is also a duty of care for landowners and businesses to reasonably protect explicit and implicit invitees from danger on their premises (tort, Iolis).

The third element in the tort of negligence is damage. Because the purpose of law of tort is to compensate people “who suffer legally recognizable damages”, then if no such injury or damage exist, no tort exists and no damages will be compensated for (Iolis). Even if there is a breach of duty of care, there should be provable injury or damage for the tort to be valid. Damages take different forms in order to be practically applicable, such as physical damages (personal injury), economic (financial loss), reputational (defamation cases), and emotional distress (which must be proved to be a psychiatric illness and not just distress). (Common Law, 151). One of the most uncertain areas in the law of negligence is how far there is liability for financial loss if the damage was not physical (Common Law, 150). Courts have usually awarded damages to economic loss “where that loss is attached to physical loss” (150). Economic damages are considered for special circumstances that depend on the nature of the duty of care owed to the claimant mainly in “professions where money is central to the consultative services” (Wikipedia). The law of tort follows the principle of ‘restitutio in integrum’ (restoration of the original condition) for damages, which aims to put the claimant back in the position he or she was at “before the tort was committed”. Once a breach is established “the only requirement is to compensate” the claimant. Damages are compensatory and not punitive in general, which means the amount paid should aim to compensate the claimant and not aim to “punish the defendant”. (Wikipedia). Special damages are those that could be quantified in monetary terms, and general damages are those that are not quantified such as personal pain and suffering, and punitive damages are those that are intended to deter intentional wrongdoing (Wikipedia).

The fourth element is proximate cause, which is the principle that the damage should be the result of the negligent conduct of the defendant. ‘Res Ipsa loquitur’ (the facts speak for themselves) is the principle applied to test the proximity of the cause which states that negligence causes an injury or damage if the event resulting in the injury or damage would not have occurred in the absence of the negligent act (tort, Iolis). The cause could be a direct act or omission of an act without which the injury would not have occurred or been aggravated, or a proximate one, where the relation between the act or omission and the cause is direct enough to impose liability (tort, Iolis). Factual causation is when the injury would have occurred or the risk to the harm was increased due to that breach (Wikipedia). The “but for” test ensures that the action or omission must be proximate enough to the injury to be regarded as causing it (torts). The breach could be “a proximate cause” and not the only proximate cause, meaning that there could be multiple proximate causes, of which this cause is only one (negligence and tort law).

Foreseeablity also defines whether the cause is ‘proximate’: if the consequences of the act or omission are unforeseeable by a reasonable person, then no one can be held responsible and no proximate cause or negligence exists (tort, Iolis). This is called legal causation (Wikipedia). Furthermore, the proximity of the cause could be broken by ‘independent intervening forces’, where the connection between the cause and the injury is broken by the “occurrence of another act or omission” not caused or under the control of the tortfeasor, “which supercedes the original wrongful act” as the cause of injury (Iolis). Moreover, if the action or omission that was breached is a statutory obligation, then the negligence is said to be ‘negligence per se’ (in and of itself) and is usually the result of violating a criminal statute (Iolis)

Another principle which defines the relation of the cause to the injury is contributory negligence, which is negligence on the part of the claimant that contributed to the injury or damage that he or she is complaining of. This kind of negligence originally barred the claimant from any damages to be recovered from the defendant (Iolis). However, this was replaced by the modern rule of ‘comparative negligence’ because of the harsh effects of contributory negligence on the claimant (lawschoolhelp). Comparative negligence allows the claimant to recover part of the loss that was not caused by contributory negligence (some courts do not recover any losses if contributory negligence was responsible for more than fifty percent of the loss, called ‘50% caps’” (torts).

References: