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Tort Assignment - Essay Example

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Tort is an area of civil law based on the impression that the defendant has caused undue damage, injury, or loss to the complainant by breach of duty or obligation to care but absent any malice or bad faith on the part of the defendant. Tort is akin to negligence, the elements of which are as follows: (1) there is a duty or obligation to care other than based on contractual obligations; (2) there is a clear failure to comply with the said duty; (3) the breach caused injury, damage or loss to the complainant; and (4) there are no applicable defences…
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Download file to see previous pages Dickman. In Donoghue, Lord Atkin spoke in his judgment: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into questions.” ([1932] AC 562 at p 580). This is known as the Neighbour Principle. In Anns, Lord Wilberforce identified the loss suffered by the complainants as material physical damage. Two (2) stages were laid down to establish the obligation: (1) whether or not, in a reasonable foresight of the defendant, lack of care may cause damage, injury or loss to the defendant. If in the positive, then there is a prima facie duty to care; and (2) in case of an affirmative answer, is there a necessity to limit the extent of said obligation. An example of the first test is the digging up of a big hole large enough to accommodate an adult. By leaving the hole open, it can be reasonably foreseen that any blind man without any companion may fall on said hole. Undoubtedly, there is an obligation on the part of the one who dug up the whole. On the other hand, an example of the second test is the injury suffered by a suspect of a robbery in the hands of a policeman who caught him in the act but attempted to fight back. Despite the injury suffered by the suspect, the policeman cannot be held liable because the injury was caused by his performance of duty. In Caparo, the two tests laid down in Anns were expanded, adding the following: is it fair to impose upon the defendant the obligation to care towards the complainant? Applying the above principles in the instant case, the liabilities of the parties are as follows: Arsane is liable for his tortious act. As mentioned earlier, every person is liable for the consequences of his acts. Here, Arsane knew as a carpenter that the wooden floor may have inflammable materials. He is supposed to understand that cigarette is not allowed in the workplace because it can become a source of fire. Presumably, Arsane knows his obligation to take good care of the premises as well as the materials therein. A duty to care exists on the part of Arsane, not just as a worker but also as a co-worker. However, since Arsane was very much taken away by the music, he allowed himself to light a cigarette and much worse, threw the same while still lighted, indoors! Such an act of gross negligence is definitely a clear breach of obligation to care. Arsane has absolutely no defence to justify his tortious act. Such an act of negligence caused severe damage. First, to Sir Dino, who suffered loss of properties and potential income. Second, to Benger, who suffered material physical damage due to loss of his right foot. However, Arsane cannot be made liable for the nervous shock suffered by Benger’s wife, twin sister, and mother due to lack of proximity. Although the nervous shock suffered by the three was directly related to the injury suffer ...Download file to see next pagesRead More
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