Development of Tort of Negligence
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Law of Tort involves cases or scenarios that do not involve criminal activities but are based on the express or implied obligations that are overlooked or failed by an individual. Law of Tort deals with wrongful acts that not necessarily breaching of contract, that are normally associated with injury to another party, property, or reputation where the injured party is at liberty to seek compensation. Tort is one of the branches of civil law that has its foundation on a claim of the defendant on the injury permitted to the plaintiff by violation of a pertinent obligation imposed by the general law. This is clearly defined when one has knowledge of the injury or loss and the obligations that are imposed by the law. The Law of tort aims at protecting people physically basing on their personal integrity, property interests and economic interests in the society. Negligence is referred to as the process of breaching a lawful duty to take care by an unintentional act that brings injuries to the claimant. It is however noted that the tort of negligence is not necessarily limited to acts of inadvertence in the society. Other acts like deliberate infliction of harms to another party can call for liability in relation to the tort of negligence. According to Donoghue v Stevenson, 1992, negligence in the law of tort is directly linked with the autonomous tort that offers remedies to all forms of damages instilled on the claimant where there is no observation of legal duty.
There are many types of tort but they can be merged to form three basic types of torts. The first being intentional tort. This is a civil wrong which occurs when one party undertakes an activity that in direct or indirect damage to another. A good example of his tort is when in a fight a person strikes another and in the process injures him or her; this is considered a tort of battery. However, when one accidentally strikes another and injures him or her is not at fault since there was no intention to do so. Another major type of tort is strict liability; this is also referred to as absolute liability. This arises when a defendant was negligent and/or was intending to act in a way that will cause harm to the plaintiff. In some cases liability can arise in a situation where the defendant acted in a way not intending to be negligent or cause harm
A good example of absolute liability is when a construction company in its activities is necessary to blast heavy rocks using explosives such as dynamite. When an employee of the construction company blasted a boulder with extreme care but nevertheless some flying fragments of the blasted rock damaged a nearby house. The owner of the damaged house sued the construction company for the damage caused on the house. The company raised a defence claiming that the owner was suing for tort damages but the damages could not materialise since the company was not intending to damage the house. This defence is absolutely invalid. This is due to the fact that as ordinary fault is the basis of tort liability some cases arise where strict liability is totally imposed on the doer. This simply means that whenever harm is caused, there is no defence that no harm was intended or that utmost care had been put in place to prevent such an invent happening.
The tort of negligence refers to the process of breaching a legal duty on part of your responsibility that in turn lead to damage to the involved parties as it is normally against their will. Duty of care considers whether the penalty on the side of the defendant’s act are justifiable, relates the mutual connection of the propinquity between the parties and if in all the circumstances it will be fair, just and reasonable to inflict an obligation on the defendant. Negligence observes the idea that if the claimant’s injuries outcome from the conduct that falls short of socially accepted principles, then there must be compensation. It is believed that the law of tort aims at enforcing standards of good behaviour in the society as it deters people from being careless in their dealings with others. After the establishment of a breach, the claimant is required to prove the breach is the result of the damage (causation issue) and it is satisfactory to the remoteness issue. Causation and remoteness are vital links amid the violation of an obligation enforced by law.
In order to be a successful claimant in any negligence action, various factors must be observed. The defendant has to be found owing the claimant a duty of care. Secondly, there must be evidence that the defendant broke the duty of care owed to the claimant according to the demands about law. Finally, the claimant must have suffered damage due to the breach caused by the defendant of which the law will be able to recognize in order to deem it as worth compensation. Negligence refers to the process of breaching a legal duty on part of your responsibility that in turn lead to damage to the involved parties as it is normally against their will. Duty of care considers whether the penalty on the side of the defendant’s act are justifiable, relates the mutual connection of the propinquity between the parties and if in all the circumstances it will be fair, just and reasonable to inflict an obligation on the defendant. Negligence observes the idea that if the claimant’s injuries outcome from the conduct that falls short of socially accepted principles, then there must be compensation. It is believed that the law of tort aims at enforcing standards of good behaviour in the society as it deters people from being careless in their dealings with others.
Development of Tort of Negligence
Tort Law is currently viewed a form of crisis across the globe in the legislative sector due to the strong resistance and antagonism as a result of the legend ‘compensation culture’ that has been in existence for many decades. Politicians across the world are in the course of bringing up radical changes that mainly aim at minimizing the insurance premiums that will eventually lead to plummeting of the entitlement of the injured plaintiffs. Tort of negligence is dated as a current tort according to the UK law. It is viewed as a current as it cannot be compared to the other laws of tort like trespass on land, assault and battery that have been in use for many centuries. Negligence as a principle has been instituted as a accountability for behaviour deteriorating in the early twentieth century while dealing with the verdict on the case of Donoghue v Stevenson by the House of Lords’.
Initially, negligence was viewed as a technique of executing and interpreting the other torts rather than a distinct tort in itself. The tort of negligence was carefully fragmented before the identification of the duty of care where it was recognized with many limits in most cases. An example is in situation where a person was in control of hazardous product like a gun where care was provided to in order to avert it from causing harm to people in the society. In the entire period of the 19th century, there existed only remote pockets of negligence liability as consideration was given to the general principle of negligence. The twentieth century has provided much progress towards the negligence of tort as the judges become implementing policies focusing on the articulation of a general principle of a duty of care, a case that is clearly seen on the verdict of Brett MR in Heaven v Pender, 1883.
During the ruling of Donoghue v Stevenson case in 1932, the House of Lords’ had not yet established the recommended general principles on the negligence in law of tort. During this period, reliance was on the private law which was by then subjugated by the contractual perspectives on the role and obligation of each party. The scenario above implicates that if an issue was outside the partial pockets of liability stated, the party owed a duty of care to the other in circumstances where ‘they had specifically agreed to do so’ through an agreement on the matter. Claimants who had received injuries through other person’s carelessness were not liable to a claim. Such cases include scenarios where a consumer suffers from the use of a defective and dangerous product where a contract exists between the manufacturer and the retailer or the retailer and consumer. This provides the retailer with the mandate of suing the manufacturer where the consumer also sues the retailer where due to the scarcity of the general tort of negligence in collaboration with doctrine of privity of the agreement limits the verdict on the case, thus, making the consumer not liable to the claim by the retailer to the manufacturer. This was the case on the claimant in Donoghue v Stevenson case.
The Donoghue overruling on the Winter-bottom v Wright case brought into existence the concept of a new ‘pocket’ of liability in which the party was liable to the duty care despite being outside of the contractual rapport. This case led to the establishment of a channel that comprises of the manufacturer-retailer-consumer. It also enlisted the judicial system that the categories of negligence are flexible depending on the subject thus were called upon to be ready to address new duty situations arising within their jurisdiction. Donoghue v Stevenson case is thought to have launched a single and universal prerequisite on duty care. The opinion is also applied by a higher-ranking law lord in Scotland, Lord Buckmaster, while ruling on the case of the possibility of claim to Mrs Donoghue where the claim was rejected with reference to the opinion of Lord Anderson in Mullen v Barr & Co of 1929.
In the 1970s the judiciary system underwent gradual reforms on the negligence tort where it was described as, ‘an ocean of liability for carelessly causing foreseeable harm, dotted with islands of non-liability, rather than as a crowded archipelago of individual duty situations’. This was evident in the following cases: McLaughlin v O’Brian in 1982 that involved psychiatric damage; Anns v Merton London Borough Council in 1978 that was relevant to economic loss; overruled by Murphy v Brentwood District Council of 1990; Benarr v Kettering HA 1988 in a case where the claimants were awarded damages for the costs of bringing up a child, including the private school fees, where a child was born after a negligently performed sterilisation procedure; and Home Office v Dorset Yacht Co Ltd 1970 related to the liability obligatory on the Home Office for damage caused by escaping young wrongdoer. In the 1980s and 1990s, the judicial system set in place policies that favoured the tort of negligence where they exercised better vigilance and daunting liability on necessary occasions as seen in the Caparo Industries plc v Dickman case of 1990. The restriction on the retrenchment process of 1980s and early 1990s provided room for the expansion of the negligence responsibility in the relevant circumstances. This was applied in the cases below where the claimants’ lives had been affected:
Phelps v Hillingdon London Borough Council in 2001where the bone of contention was the negligent failure to diagnose dyslexia.
W v Essex County Council of 2000 about the abusive foster on a child
Customs and Excise Commissioners v Barclays Bank Plc in 2006
X, Y v London Borough of Hounslow in 2008, where all the relevant elements of tort of negligence namely duty, breach and causation are established and observed while determining the claim.
Role of the concept of the duty of care in the tort of negligence
Tort of negligence plays a key role in the law of tort as most of the claims are normally brought under the tort of negligence compared to the other types of tort. It also has an influence on the extent further than the tort itself due to its fame and eminence gained within a relatively shorter period. A duty of care involves an obligation where a person playing a particular has to have to be concerned about his or her actions influence on other people’s safety and integrity. This always includes giving attention being keen and watching out for anything that can go wrong and cause harm. In many occasions, is the duty of care is not met in a role that solely requires it, the person responsible can be held accountable for allowing negligence to occur. This is the primary situation that provides the basis for suing for negligence in a court of law. However, a clear line should be drawn between duty of care and standards. Normally a duty of care is a representation of an obligation put upon a person as a surety that nothing goes wrong with the assigned activity. This does not give a clear detail on the way to provide that care. It should be observed that duty of care requirements tend to apply in occupational situations. In the other hand standard of care provides the minimum amount or the quality of that particular care that should be availed under the duty of care. For example medical staff has a duty of care to a patient with a cut. Preparing a dressing for this wound involves part of treatment. Where the cut is large and deep and is dressed by a small Elastoplasts will not have met the required standard from the doctor or nurse.
In the current world with the high rate of industrialization the tort of negligence and duty of care plays a major role in the providing leverage and justice in the society. There are many professions created such that some create a problems in coming up with a clear cut line to provide safety and accountability among the work environment. Some work environments create a tricky situation on who should be held responsible for some occurrences of certain activities. The law of tort has developed a culture among employers to come up with effective manuals that clearly define each employee’s roles and scope of work; this has helped ease the accountability factor and hence increased safety in the work places. Stress has been found to be the main course of accidents. This is due to the fact that a stressed person tends to be complacent and in the process makes mistakes that result to accidents of different magnitudes according the type of work environment. The law of tort has resulted in a great change in employers’ notion on the duty of care. Employers now have a specific statutory responsibility ensuring a safe and well monitored workplace. Whenever a lawsuit concerning negligence and duty of care is brought to court, there is test of negligence that is undertaken to determine whether the case is successful. This involves a three stage process. The first stage is the duty of care between the involved parties. The second stage is to prove if there has been a breach of duty. Thirdly and most important stage is the causation test. This stage requires answering questions like; was it reasonably foreseeable that the particular breach directly caused the psychological injury on the plaintiff? The injury suffered should be of a high order like a psychological injury that has been diagnosed by a practitioner rather than day to day stress. In many negligence cases, three tests for the organizations duty under the negligence law is quite minimal, this basically is acting reasonably as an employer. Affected employees have an uphill task of proving it’s not the work that has caused them stress but that it’s the stress of work that caused them a psychological injury where the employer knowingly failed to make steps that could reduce or prevent I altogether.
The duty of care is seen as a banner. The emerging cases on workplace stress have lead to rampant emphasis on the employers’ duty of care in preventing workplace injuries. This issue has lead to many employers providing workplace counselling services to demonstrate on their commitment to the course. Duty of care is becoming a course of inspirations and a powerful lever of change.
Duty of care is viewed as a shield by many employees. It duly covers them from any event where the employers should be held accountable. Duty of care also prevents employers against legal action by the employees. The duty of care assists a lot in drawing a clear line between employers and employees responsibilities in case of a lawsuit. This law alleviates the employers concern about his or her employee’s welfare. This may be shown through the entity’s policies put in place that define these guidelines. The provision of psychological support services in many different forms by the employers gives the employee the zeal to work harder since there is a feeling of protection and accountability. This further generates to better services and quality of produce in the market. In such cases where the employers provide comprehensive policies, it’s very rare for employees to successfully claim for negligence.
With the many overlapping and intertwining nature of the current factors in the industries like financial care, medical care, insurance covers among others. It’s important to draft and implement policies that effectively define and cover all parties in a contract. The tort of negligence plays a major role in shaping and securing the work environment. With adequate accountability in place other policies can be effectively implemented in any organization. Duty of care acts as a watchdog in contract dealings.
In conclusion, the application of the principles of negligence faces many challenges in the implication process by the Courts in relation to instituting the various principles in their relevant categories on the affected parties in the society. The paper has focused on some of the cases that have been previously handled in our courts and their verdicts. Although the cases do not necessarily represent the real image in most of the decisions delivered in our judicial systems. Litigation in relation to the duty care is one of the factors that has not been fully addressed and still pose a danger to the claimants.
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