Liability in Negligence in English Tort Law - Coursework Example

Negligence Negligence A tort is a civil act or omission comprising a wrong against individuals instead of the The individuals could include legal entities such as corporate institutions and companies. The underlying principle of tort law is that an individual has some interests that are protected by the law. The protection can be in the form of court orders to the defendant to refrain from carrying out offensive acts or omissions, or the plaintiff being awarded a prescribed amount of money when a protected interest is infringed. The damage or harm must be the result of the defendant’s fault and at the same time legally recognised as attracting liability. In the context of negligence, tort law is more concerned with the harm that results from careless behaviour rather than harm caused intentionally. It follows, then, that negligence is the failure to apply the reasonable care as a prudent person would have done in similar circumstances. The key principle of the tort law of negligence is that people must exercise rational care when acting by considering the potential and foreseeable harm they can cause to others, Fletcher vs Rylands, LR 1 Ex 265 of 1866 (Donal 2004, p.5). So, when a court establishes that there was negligence, it is actually conducting an ex post assessment of the defendant’s conduct. Historically, suits of negligence have been analysed in stages known as elements. The significance of elements is that a plaintiff must prove all elements relevant to his claim. For example, if there are five elements in a particular tort, failure to prove all five will lead to failure of the claim. Despite all this, it is also crucial to note that persons who disregard the safety aspect of others but cause no injury may only be reprehensible morally, but will not be guilty of negligence. On the other hand, those who make all effort to exercise care but still fall below the stipulated standards by the court will be guilty of negligence and held liable (Feinnman 2010, p. 69). The legal duty of care a defendant owes a plaintiff defines the relationships and circumstances recognised by law as giving rise to legal obligation to take care. A person may be owed a care of duty by another to ensure that unreasonable economical, mental or physical loss or harm is not suffered. According to the House of Lords, duty of care can be tested in three parts in judicial terms. First, the defendant’s conduct must have caused harm that was reasonably foreseeable; then, there must have been a proximity relationship between the plaintiff and defendant; and finally, imposing a liability must be reasonable, fair and just (Steele 2007, p.114). A duty of care forced on a person requires them to adhere to a reasonable standard of care while they perform any acts that pose potential harm to others. Failure to exercise such care may result in the defendant’s liability to pay damages to injured parties, or those that incur losses due to the defendant’s breach of duty of care. First of all, the plaintiff needs to establish that they were owed by the defendant, a great duty of care, because duty of care also represents the first element that can be used to proceed with action in a case of negligence (Bagshaw & McBride 2008, p. 83). In the wider scope, duty of care owed by the defendant to the plaintiff can be viewed to be a way of formalising the social contract, which encompasses the implicit responsibilities individuals have towards other society members. Further, although the legal duty of care often develops through common law’s jurisprudence, it need not be necessarily defined by law. Before the 20th century, common law limited the scope of care of duty to those with whom people were in privity. However, it was later perceived differently after the Second Industrial Revolution presented cases of product liability, giving rise to the neighbour principle (Donoghue vs Stevenson AC 562 of 1932), which viewed as law the rule of loving one’s neighbour (Buxton 2000, p. 120). It was established that, despite the absence of prior interaction or relationship, a duty of care applied and the privity of contract could not constrain it. According to the case, a manufacturer owes a consumer a care of duty in the production of goods. As per English tort law, liability in negligence can only occur when a plaintiff establishes that a duty of care was owed to them and that, further, the defendant breached that duty. The defendant, therefore, is in breach of duty if their conduct was short of the stipulated standards under the given circumstances. As Blyth vs Birmingham Waterworks 11 Exch 781 of 1856 stated, a defendant needs to meet a reasonable man’s standard in order to avoid breaching a duty of care (Deakin, Johnston & Markesinis 2003, p. 114). Being an objective standard, there is a presumption that a ‘reasonable man’ does not have to be flawlessly perfect, but is considered to be ordinarily prudent and careful even though that does not mean foreseeing every potential risk. The factors considered when judging the breach of duty by a defendant include what the defendant knew; what the level of risk was; the practicality of the precautions; the social significance of the activity of the defendant; and common practice (Elliot & Quinn 2007, p. 204). From these factors, a defendant is only liable to breach of duty of care if, under the same circumstances, the damage or loss could have been foreseen by a reasonable man at the alleged time of breach. The higher degree of risk of serious harm, the more the precautions the defendant would have taken. Whether the precautions taken were practical enough can be exemplified by the situation of a school having to employ a playground supervisor after the school closes and all children vacate the compound. In such an example, the school might not be negligent for accidents after school hours. Conversely, a blind person can fall into an open trench even though it is marked by a visual sign by a contractor. However, the contractor is negligent and liable of breach of care by failing to erect a barrier since the possibility of a blind person walking by is highly foreseeable. Persons legally recognised by law as responsible for putting goods into circulation include retailers, suppliers, distributors and manufacturers (Lewis, Morris & Oliphant 2006, p. 87). In law, the area of product liability is the one in which these entities may be found responsible for injuries caused by products. A claim in negligence may be traced up the supply chain to the producer of a defective product, and the retailers, sellers and distributors may be found liable for negligence under the same conditions applicable to the producer. The sellers, retailers and distributors may not be the producers or importers of defective goods, but may be considered so in the event that they cannot avail information on the producers or importers within reasonable time to injured parties. Failure by a producer to reasonably ensure that their product is safe for any potential consumer will lead to liability under the tort of negligence, which is also manifested in Donoghue vs Stevenson AC 562 of 1932 (Feinnman 2010, p. 93). In a similar manner, suppliers need to exercise reasonable precaution and obtain accurate and reliable information regarding producers and importers of goods that they circulate, whether they were manufactured with or without the defects. On the other hand, they will still be liable in any case if it is established that they circulated the goods in spite of knowing that they were defective. However, although action may be brought for damage to private property, personal injury or even death, none of these types can be used for pure economic compensation or any consequential loss (Lewis, Morris & Oliphant 2006, p. 88). A negligence claim will be founded on the assumption that all persons responsible for circulating goods (essentially, players in the supply chain) owe a duty of care to everyone reasonably expected to come into contact with, or consume the goods in question. References Bagshaw, R, & McBride, N 2008, Tort law, Longman, London. Buxton, R 2000, ‘The human rights act and private law’, Law Quarterly Review, vol. 48, no. 3, pp. 116-124. Deakin, S, Johnston, A, & Markesinis, B 2003, Markesinis and Deakin’s tort law, Oxford University Press, London. Donal, N 2004, ‘Psychiatric injury at the crossroads’, Journal of Personal Injury Law, vol. 3, no. 1, pp. 4-8. Elliot, C, & Quinn, F 2007, Tort law, Longman, London. Feinnman, J 2010, Law 101, Oxford University Press, New York. Lewis, R, Morris, A, & Oliphant, K 2006, ‘Tort personal injury claims statistics: is there a compensation culture in the United Kingdom’, Journal of Public and International Law, vol. 2, no. 2, pp. 87-89. Steele, J 2007, Tort law: text, cases, & materials, Oxford University Press, New York. Read More