Introduction to Law of Tort - Research Paper Example

?LAW OF TORT GRADE 8TH DECEMBER Introduction to Law of Tort A tort can be defined as an action done by one person and that causes harm, damage or an apprehension to another. Therefore, the law of tort establishes the circumstances in which a person’s interests have been harmed by another and how he can be compensated through the civil courts (Harlow, 2005). A tort should therefore be differentiated from a crime. In a tort, the injured party should be compensated by damages but a crime leads to criminal proceedings. Crime is as a result of breaking the law (Adamson & Morrison, 2011), but a tort may not be as a result of breaking the law hence; it necessarily may not be a criminal wrong. Torts can be classified into three categories depending on the nature of the defendant’s conduct: intentional torts, strict liability torts and torts of negligence (Edwards, et al., 2009). An intentional tort is a tort that describes a civil wrong resultant from a deliberate act on the part of the defendant. Intentional torts usually involve actions which may also constitute a crime, for example an assault. However, a tort should be distinguished from a crime. Strict liability torts refer to situations where an individual is liable for injury of another no matter the precautions that were taken. This type of torts is found to a lesser degree, more often than not in the context of product liability. Negligence as a tort decides legal responsibility for slapdash action or inaction which causes injury. Thus, the tort of negligence covers a wide span of human activity and it may not necessarily be concerned with the activity itself but also the manner in which the activity is carried out. A negligent conduct is that which falls bellow an acceptable standard and it will mount up to a tort if it causes damage to a party. Negligence will be proved where the defendant owed the claimant a duty of care, the defendant breached that duty of care, the breach resulted to harm or damage to the plaintiff and lastly, the type of damage suffered by the plaintiff is closely related to the defendant’s conduct/actions (Stuhmcke, 2001). The objectives of the law of tort are to compensate victims of injury and loss and protect the interests of individuals that are their reputation, property etc. The other objective of the law of tort is to ensure that individuals check their actions and realize that they affect other people. It also provides the means whereby a person who regards himself or herself as above suspicion in a dispute can be judged by being declared in public to be on the right by a court (Postema, 2002). The person who commits a tort is known as a tortfeasor and the one to who suffers the damage is known as the tortfeasee. The Duty of Care Element For a tort of negligence to occur, the defendant must have been bound to perform some duty, that is, a defendant is only liable in negligence to a person to whom the defendant owes a duty of care and if this element is absent, the action of negligence will fail (Heaven v Pender, 1883). In this case, an owner of a dry dock supplied ropes that were used to support a phase that has been slung over the ship’s side. The stage failed because it had been previously burned and it injured an employee of a different contractor who was working over the ship’s side. The court held that the defendant, who as the ship owner was liable of tort of negligence because he failed to carry out his duty of care by checking the condition of the ropes before using them (Reid & Zimmermann, 2000). Thereza being an employer of the twenty employees, she has a duty to take due care and diligence when dealing with them. She has a duty to fairly remunerate them as agreed in the employment contract and provide a good working environment for her workers which ensures employee health is maintained. She is also bound to supply the employees with the necessary tools and equipments to enable them carry out their work and maintain their safety. Another duty of Thereza as the ‘Complete Care Ltds’ employer is that she shall give correct information about terms of employment and she will carefully follow them and that she shall listen to the employees complaints (Adamson & Morrison, 2011). Failure to carry out the duties stated above, Thereza will have committed a tort of negligence. When Lucy was employed by Thereza, she had some duties which she was assigned to undertake and thus had a duty of care over the activities she was to undertake. She had a duty to fulfill the express terms of the employment contract and other implied agreements made by Thereza. She also was bound by the duty of obedience of the reasonable orders and rules of her employer. She also is under the duty of possessing reasonable skills, experience and/or knowledge necessary to do her job. Lastly, Lucy is under the duty of loyalty and honesty to Thereza, her employer (Adamson & Morrison, 2011). Where she does not carry out the duty of care and diligence and the action results to harming any person, this will lead to a tort of negligence. In the event of Lucy leaving Thereza’s company to go and work for a competitor, this must have caused Thereza some damage, however the act of Lucy might not have resulted to a tort. If the action of Lucy was in good faith and there is concrete evidence that she never intend to harm Thereza in any way, then the action will not amount to a tort. A tort will also not rise where his action was not against any of her duties in ‘Complete Care Ltd’. She may also have a right to leave where Thereza will have committed a tort of negligence. Analysis of the case Lucy’s statements that she has all of her national vocational qualifications for care work and that she had records which were clean of crime are just mare statements and where Thereza relies on the information and it turns out that the information in untrue, she cannot claim damages due to breach. Therefore, Thereza has the duty of care to verify the statements made by Lucy. This principle was set in the case of Heaven v Pender, 1883 (Harpwood, 2009). Lucy has a right to claim for personal injuries she sustained while she was an employee at Thereza’s company, since the employer has a duty to care for the employee’s welfare. However, in this case, this will not result to a tort of negligence by the employer but a tort of strict liability. Torts of strict liability will occur in a circumstance where a person is liable for injury of another no matter the precautions that were taken. In this case, Thereza had made sure that the task of moving Frank, the client was well looked into. However, an inconvenience occurred when Jo phoned that he was sick, which resulted to Lucy’s injury. The consequences of this tort are that Thereza will be legally responsible for the damage and loss caused by her acts regardless of the culpability. In tort law, strict liability is the obligation of liability on a party with no finding of fault. The claimant only needs to prove that the tort occurred and the defendant was answerable. The law imputes harsh liability to situations it considers to be naturally dangerous (Jolowicz, 2000). This principle was explained in the case of Spano v. Perini Corp where the plaintiff’s garage was destroyed by shock waves that emanated from a dynamite blast set that was set off by the defendant on a nearby property. The blast never caused any physical trespass nor was there any proof of negligence on the part of the defendant. A third party’s car was also damaged which was in the garage at the time of the blast. The court’s decision was that the defendant was to compensate both the plaintiff and the third party injured in the process. This case recognizes that under the doctrine of strict liability, an actor is liable for damages caused by abnormally dangerous activity with no regards to fault. In the early common law, it could not have been possible to distinguish between physical invasion which was trespass and the concussion, but the doctrine of strict liability distinguishes this two (Kelly & Parleet, 2006). The footage capturing Lucy stealing from Elsie’s purse provides evidence that Lucy has not been carrying out her duties with care and due diligence. Where such a case arises, it leads to breach which amount to an intentional tort. First, Lucy has a duty owed to Elsie of care. Lucy is bound to act honestly to clients and in this case, she has acted contrary. In addition to this, the tort constituted a crime because it’s against the law to steal. Due to the negligence of Lucy, she is liable to pay Elsie a reasonable amount of damages. Elsie has the right to recover the amount stolen and compensation of all the items lost in her house so long as there is reasonable evidence that she owned the property she claims she has lost. Elsie can also obtain an injunction therefore, restraining Lucy from ever coming to her home. This principal was explained in the case of Ybarra v Spangard were the plaintiff was diagnosed with appendicitis and the defendant was to perform an appendectomy. After the surgery the plaintiff woke up with a sharp pain between his right shoulder and neck and he eventually developed a paralysis and muscle atrophy. He filed suit against the doctor but the court awarded a no suit. Defense of an action in Negligence When a plaintiff brings an action against a defendant claiming negligence, it is necessary for the plaintiff to establish his/her allegations on the balance of probabilities and equally it is possible for the defendant to refute the allegation of negligence made by the plaintiff so as to defend him. While raising defense, it is necessary for the defendant to establish that defense on the balance of probabilities by calling the appropriate evidence. The general defense available to the defendant is explained as below: A general denial of the allegation-This type of defense would occur where the defendant can institute that no duty of care was due to the plaintiff, or whatever the actions of the defendant were reasonable in all circumstances, or the plaintiff suffered no damage, or there was no formal relationship between the violation of duty of care and the damage suffered by the plaintiff, or damage suffered was not reasonably foreseeable. Contributory negligence- This is like a partial defense to an action in negligence. Where the defendant succeeds in establishing contributory negligence as a defense, the common law will assume that this is total defense. However, according to the law of statute, contributory defense as a defense its aim is to apportion a determined percentage of blame to the plaintiff for the damage caused and penalizing the plaintiff by reducing the damage accordingly. Voluntary assumption of risk- This type of defense is commonly known as the volenti. Its foundation is that no action in negligence can arise if the plaintiff deliberately and freely consented to run the risk of injury. This simply means that in agreeing to participate in a dangerous activity, the person had voluntarily assumed the risk of injury. However, this principle will not apply where an individual negligently or carelessly causes damage or injury to a party participating in such an activity (Staunton & Chiarella, 2003). Conclusion The main purposes underlying principles of tort are protecting persons from unjust injury by providing legally enforceable rights, compensating those who have suffered injury, encouraging minimum standards of social conduct and deterring violations of those standards of conduct. Analysis of a breach of tort should ensure that it classifies the case in the three major categories of tort which includes: intentional torts, strict liability torts and torts of negligence. References Adamson, E. John and Morrison, A., 2011. Law for Business and Personal use. Mason, Ohio: South-Western Cengage Learning. Aspen Publishers Inc. Edwards, S., Edwards, L., and Wells, P., 2009. Tort Law for Legal Assistants. 4th Edition. Clifton Park, New York: Cengage Learning. Harlow, C., 2005. Understanding tort law. 3rd Edition. London: Sweet and Maxweel ltd. Harpwood, V., 2009. Modern Tort Law. 7th Edition. Oxon: Routtledge-Cavendish. Jolowicz, A., 2000. On Civil Procedure. Cambridge: Cambridge University Press. Kelly, M., and Partleet, G., 2006. Casenote Legal Briefs: Torts .11th Edition. New York: Postema, J., 2002. Philosophy and the Law of Tort. Cambridge: Cambridge University Press. Reid, G. Kenneth and Zimmermann R., 2000. A History of Private Law in Scotland. New York: Oxford University Press. Staunton, P., and Chiarella, M., 2003. Nursing and the Law. 6th Edition. Marrickville, Australia: Elsevier. Stuhmcke, A., 2001. Essential tort law. 2nd Edition. London: Cavendish Publishing Ltd. Read More