How Tort Law Can Be Described - Essay Example

A tort law can be described as a civil wrong not arising from a contract and in the case of negligence, one should owe due consideration to one’sneighbour (Capiro Industries vs. Dickman 1990). It generally refers to the duty of care owed by somebody to his or her neighbour. Cooke (2010) suggests that in the event that it can be proved beyond any reasonable doubt by the court that the plaintiff has suffered a civil injustice, a claim can be raised and a remedy in the form of compensation can be instituted. In this case, negligence is a common form of tort law which can be punishable if carelessness is proved and the victim will be entitled to get compensation. Failure to protect others from harm as a result of somebody’s conduct is known as negligence whereby a duty care will have been ignored. Against this background, this section of the essay seeks to critically assess the standard care owed by professionals compared to the normal test. From the above definition of tort, it is clear that everyone has a duty care to make sure that their actions do not harm their neighbours. However, with regards to this normal test, it does not always follow that duty care is owed by the third party which may result in loss of something which requires the plaintiff to prove that the resultant loss has been a result of the action of the third party. This emanates from the assertion that every individual has duty care to the neighbour. Thus, negligence in common cases ought to be proved by the plaintiff that he or she has been injured or suffered losses as a result of the conduct of the third party. In this case, the relationship between the parties involved may not be very distinct, the reason why the plaintiff has to prove that he has suffered for him to claim for damages from that resultant injury which would be unprecedented. Tort of negligence in this particular scenario will involve third parties which may not be directly related. Contrary to the normal test of tort, the standard of care owed by professionals is a bit clear and distinct. With regards to professionals, the duty of care owed to the other people is clearly distinct in most cases. For instance, at the workplace, it is the duty of the manager or the supervisor to ensure that the employees are conducting themselves in a way that will not cause harm to them. It is mainly believed that when workers are at work within the company promises, they are under the custody of the employer hence anything bad that may happen to them will be owed to the employer. In such a scenario, it is the duty of the employer to ensure that the day of duty care vested in him is not breached since this will warrantee some form of compensation. In the same vein, the day of duty care for children at school is owed to the teacher because he is the one with direct responsibility with the conduct of the kids. In other words, they are under the custody of the teacher so the standard care in this case is the responsibility of the teacher. The teacher will have been entrusted to take good care of the children so it is his duty to fulfil this trust vested in him. In some cases, a medical practitioner like a dentist or surgeon has a duty of care to his patients. In the event that he breaches that duty which may result in injury, shock or even financial loss falls under the tort of negligence and the professional involved will be liable for paying compensation. It is the duty of the medical practitioner to ensure that he does not cause further harm to the patient who has vested her trust in him knowing that he will be able to assist him. For example, Lord McMillan in Bourhill v Young [1943] AC 92 (HL) suggests that the crude view that law should only take account of physical injury has been discarded and it now takes into consideration injury by shock. So in the event that a patient has been traumatised in the custody of a physician, he or she will be liable to sue for damages and ultimately compensation. It is only professional acts that are caught by the assumption of responsibility which makes the standard of care they offer more distinct. Indeed, they have a responsibility to fulfil their contractual obligation to ensure that their conduct is not harmful to their clients. Unlike in ordinary cases of negligence involving ordinary people, the professionals are expected to assume full responsibility of their actions with regards to their duties as per their contracts. Professionals are directly responsible for people under their custody and it will be their duty to ensure that that the duty care owed to their subjects is observed. Failure to conduct themselves will result in them being liable for damages as a result of losses that may be encountered by the people who are directly under their custody. They are held liable for all their actions pertaining to the people under their custody as they are directly in control of the situation. Should any harm or injury occur to another person under their custody as a result of their negligent behaviour, then they will be liable for tort damages. On the other hand, the standard care owed by professional is well outlined in most instances compared to ordinary negligence. Professionals in supervisory or managerial positions can be held liable for the actions of their employees which is commonly known as vicarious liability (McBride and Bagshaw 2008). There are certain cases when employees misconduct themselves during the period of their employee taking advantage that they are away from their superiors but once identified of their origin, the employers will be liable for their actions. The main aim here is to make the employer more responsible and accountable for the actions of all his employees given that he is the one who promulgates policies to be followed. It follows from this argument that the employer must maintain the standard of care owed as stated in the company policy. If damage has been caused to someone else by an employee during working time, then the employer is held liable for those damages since they will have been committed by someone on duty. Thus, professionals always have a duty to ensure that they are responsible for their actions as well as that of their employees. 2. In order to discuss the issues of tort liability arising from the given case, it is imperative to further explain the meaning of negligence. Negligence can be described as a civil wrong arising from the act of negligence by doing something a reasonable man would not do and a plaintiff must prove that the defendant owes a duty of care (Donoghue V. Stevenson 1932). It is of paramount importance for the plaintiff to be able to prove that the defendant had duty to take care of and that duty of care has been breached in order to win the claim that the subsequent injury after the action of the defendant could have been avoided in the event that he would have acted within reasonable limits. In order to prove the existence of day care duty, some conditions should prevail where a defendant can be taken to task if this duty is breached. Under the case of Capiro Industries vs. Dickman (1990), the following conditions should be taken into consideration which include; foreseeability, proximity as well as reasonability. In some cases it may not always be the case that a duty of care exists. Indeed, some situations are foreseeable to any reasonable person before he or she embarks on a particular action that may be dangerous to another person. In this case, it can be noted that all incidents except one were accidental. Rupinder is involved in an accident while trying to avoid a ball which was coming straight to her windscreen and all the subsequent action that followed was an attempt to save her life. A tort of liability arises from the negligent behaviour of the operator who recklessly recorded the accident as having taken place at Bringley, 20 miles away and dispatched an ambulance and fire engine to the wrong place. By the time they arrived Rupinder had suffered irreversible brain damage. Though it is likely that she would have suffered the same, the delay in arrival of the ambulance deprived her of any chance of making full recovery. On the other hand this traumatises John. By any standard, the operator has negligently acted in this given scenario in that his careless actions have deprived someone who has been involved in an accident the right to full recovery. This can be aptly explained using the conditions mentioned above in order to prove that the day of duty care existed and the operator is liable for negligence. The operator has a duty to care for the people who have been involved in an accident or whose lives are under threat from danger. In the case of reasonability, it can be noted that the operator did not behave in a reasonable way. Where an accident has been reported, a person with such a responsible position should not take chances as this would endanger the lives of the victims who would have been involved in an accident. It is always anticipated that a person with this post must act in a reasonable capacity otherwise careless behaviour may expose the lives of people involved in an accident to danger and this will leave him liable for negligent behaviour. It is expected that a reasonable person would have foreseen the dire situation of the people who have been involved in an accident. It is the duty of the operator to ensure that the safety interests of the people involved in an accident are protected. Working for the emergency services department entails that the operator must be fully aware that he is responsible for the care of the people who have been involved in an accident. When this person was employed, he agreed to the terms of work which entails safety of all the people who might have been involved in an accident but it seems that in this case, he behaved irresponsibly. Some situations are foreseeable before a person embarks on a particular action that may be dangerous to another person. The fact that the defendant behaves carelessly though he may not be aware of the related danger would leave him liable to negligent behaviour in this case. It can be seen that his reckless behaviour has made worse the situation for Rupinder who has been involved in a fatal accident. This is described as negligent behaviour by any standard. A person responsible for saving the lives of other people should always show concern than just taking every situation lightly which will leave other people vulnerable. In the case of Donoghue V. Stevenson (1932) proximity is described as a situation where a neighbour is a person who is closely and directly affected by somebody’s actions and ought to reasonably take that fact into account. Simply put, the aspect of proximity loosely refers to closeness to somebody which should be taken into consideration to ensure that somebody’s actions should not infringe on another person’s right to enjoy his or her safety. In this case, proximity can be referred to mean the location of the accident whereby the operator misjudged the place and directed the ambulance to the wrong place. As far as negligence is concerned, the element of proximity plays a crucial role as it would seek to establish the extent to which the defendant can justify his actions. It cannot be argued that the actions by the operator were a result of a mistake but it is deliberate carelessness. From such kind of particular conduct, it can be noted that there is an element of negligence arising from the case where somebody conduct has worsened the situation of a person who has been involved in an accident. In this particular case, there is need to establish the standard expectations of a reasonable man in order to establish if the duty of care has been breached. It does not require great skill or vice versa to observe the duty of care and there are mainly two factors which ought to be considered as a way of trying to establish if the duty of care has been breached. The likelihood and seriousness of risk of injury ought to be taken into consideration when attempting to measure the defendant’s behaviour against the risk he would have exposed the plaintiff to. In principle, the tort law states that one’s actions should not harm or injure the neighbour and in such a case that the party involved may not be held liable for certain actions, then the responsible person with the custodianship of such person should ensure that he or she does not injure the neighbours. Though not direct in this case, the actions of the operator have exposed the other party involved in an accident to severe danger. In the case of Paris v Stepney Borough Council (1951) the editor of Salmond on the Law of Torts says: “There are two factors in determining the magnitude of a risk - the seriousness of the injury risked, and the likelihood of the injury being in fact caused.” Certain actions are potentially very dangerous and any right thinking and reasonable person ought to see that such kind of careless behaviour may expose others to danger. The defendant in the event of injury should always be concerned about taking safety precautions against injuring the plaintiff. In this case, though the operator is not the one who has caused the accident, he has worsened the situation by behaving carelessly with regards to giving the ambulance wrong directions to the scene of the accident. It can be difficult to establish if the duty care has been breached with regards to this issue but close analysis shows that the operator behaved in a bad way that has affected the situation of Rupinder who has been involved in a fatal accident. Though it is not direct, there is an element of negligence by the operator who should behave responsibly given that his duty is mainly concerned with saving lives of people who have been involved in an accident. Against this background, it is the duty of the responsible authorities to ensure that when they employ people to such kind of positions, they must make sure that they are responsible. They should know that working with the people who have been involved in accidents must be given the priority it deserves as this will be involving an element of life and death. From the above discussion, it can be noted that the operator for the emergency services is not the one who has caused the accident but the issue of tort of negligence mainly arises from the careless behaviour of this person. Such kind of behaviour by a person holding such a responsible position does not show concern as well as care. Negligence does not only show an element of directly injuring a neighbour but it also encompasses the aspect of caring for the other people and ensuring that their safety is not in danger. It is the duty of the operator to ensure that he promptly responds to situations involving accidents as this would involve the safety of the victims involved in an accident. 3. A tort law can be described as a civil wrong not arising from a contract and in the case of negligence, one should owe due consideration to one’s neighbour (Capiro Industries vs. Dickman 1990). It generally refers to the duty of care owed by somebody to his or her neighbour. Cooke (2010) suggests that in the event that it can be proved beyond any reasonable doubt by the court that the plaintiff has suffered a civil injustice, a claim can be raised and a remedy in the form of compensation can be instituted. There is no any form of agreement entered into in the first instance which entails that it is the duty of every individual to take care for his or her neighbour. From the above definition of tort, it is clear that everyone has a duty care to make sure that their actions do not harm their neighbours. However, with regards to the given case it does not always follow that duty care is owed by the third party which may result in loss of something which requires the plaintiff to prove that the resultant loss has been a result of the action of the third party. Thus, negligence in common cases ought to be proved by the plaintiff that he or she has been injured or suffered losses as a result of the conduct of the third party. In this case, Safraz may not be able to claim in tort against MTL and Mohammed. The plaintiff has to prove that he has suffered for him to claim for damages from that resultant injury which would be unprecedented which is difficult in this case. It can be seen that this case is of a contractual nature where MTL is doing repairs at Safraz’s shop. This company has been engaged on a contract basis though they negligently damaged the water pipes that led to flooding. According to the above definition of a tort, this case does not fit to be regarded as tort of negligence given that there is an aspect of contract involved in it. Basically, a tort is a civil wrong not arising from a contract so it may be very difficult for Safraz to claim tort damages as this is more of a contract. It is again difficult for him to prove that there is an element of duty care that exists in this particular care. The harm caused does not necessarily reflect that care of duty care has been breached given that it seems that the parties involved had previously agreed to enter into a contract which is one problem that makes it apparently difficult for him to claim for tort damages. Wherever, a contract is involved, then one may not be able to claim for tort damages from the resultant loss of property which makes it apparently difficult for Safraz to raise tort issues against MTL. Whilst foreseeability and proximity can be established in a case of negligence, if the court of law feels that it is not reasonable or just to infer duty of care in the circumstances surrounding the issue, it may be difficult to establish a duty of care. For instance in the case of Hill v Chief Constable of West Yorkshire (1989), the court could not establish that the police owe a duty of care. In some cases the resultant injury to the next person would be a result of genuine mistake where negligent behaviour may be difficult to determine but all the same, for the sake of public as well as individual safety, the duty of care is owed to everyone hence the need to be always on the lookout against such actions which can cause harm or injury to the next person. Under tort laws, everyone has a duty to care for the person next. This duty care is difficult to establish if it exists because MTL is a company that is working on a contract basis to do the repairs for the shop. This is purely not a civil injustice arising from negligence by the third party. Whilst in some cases a duty of care can be established and a breach of it as well, it may not be enough to prove a case of negligence unless some form of damage or injury can be identified. Damages in the form of injury or loss of property as a result of negligent behavior can be cited as prove that the plaintiff deserves some form of compensation as a result of the loss that would have resulted in the unprecedented behavior of the defendant. With regards to the case of Mohammed an insurance broker, it can be seen that there is no element of negligent behaviour given that these people entered into an agreement though Mohammed chose to misrepresent facts on the insurance given. Basically, tortuous behavior may entitle a ‘victim’ to compensation or some other remedy since the damages caused would be a result of negligent behaviour. However, in this case, failure to get compensation from insurance is not a result of negligent behaviour but something that has been carefully planned by Mohammed. Safrez made it clear that he wants the insurance to cover flooding but Mohammed intentionally omitted this clause. This cannot be regarded as tort of negligence but can be treated as fraud or misrepresentation of facts with the aim of swindling the customer. By any standard, it may not be said that the actions by Mohammed are considered as negligent behaviour given that this person is fully aware of what he is doing. It is difficult for Safrez to claim for damages using tort of negligence given that the action is deliberate. Indeed, Safrez has lost profits as a result of the flooding but it cannot be said that there has been negligence especially in the behaviour of Mohammed who is fully aware of what he is doing by deliberately omitting the clause that the insurance will cover flooding as well. In some cases, tort of negligence is unintentional where the defendant would have no intention of causing harm to the plaintiff. Damages for tort of negligence are not easily given until the plaintiff can be able to prove that the day of duty care has been breached. According to Terry & Giugni (2009), there are traditionally four elements of the tort of negligence which the plaintiff has to prove in order to be successful in winning the claim. There is need to prove that the defendant owed the plaintiff a duty of care, the defendant breached that duty by falling below expected standards, the defendant’s conduct caused the plaintiff to suffer physical or economic harm (causation) and the harm suffered by the plaintiff was reasonably foreseeable (remoteness). In this particular case, it can be noted that it is difficult for Safrez to claim for damages given that issues involved are arising from a contract. The aims of tort laws are specifically designed to compensate someone who has suffered a wrong resulting in injury or loss of property at the hands of the defendant and to deter persons from acting in such a way that would infringe another person’s rights. Tort laws are also designed to protect personal property, security as well as economic interests by providing legal capacity upon which damages can be claimed in the event that there has been injury caused to someone or there has been loss of property. Over and above, it can be concluded that a tort can be described as a civil wrong not arising from a contract. Everyone has a duty care for his or her neighbour and it is the role of the courts to establish is this duty care has been breached whereby compensation will be given as a remedy. In the three cases discussed above, it can be noted that professional tort is more direct compared to ordinary tests. The professional person has a duty to ensure that they do not behave negligently which can cause harm to those under their custody. In the second case, it can be noted that the telephone operator behaved negligently by giving wrong directions which resulted in the ambulance arriving late at the accident scene which caused Rupender to suffer irreversible damage to the brain. It can be said that the operator denied the accident victim the chance to be treated. In the last case, Safrez cannot sue for damages of tort because this case is more of a contract. Bibliography Bermingham, V. and Brennan, C. Tort Law : Directions Oxford University Press, Oxford Cooke, J. Law of Tort, Pearson, London, Donoghue v. Stevenson [1932] All ER Rep 1; [1932] AC 562; House of Lords. Accessed 9 January 2011, From: http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm Elliott & Quinn (2008) Tort Law, Pearson, London Giliker,P and Beckwith,S. 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