A Tort Is a Legal Wrong - Report Example

Tort Law By of the of the [Supervisor of Table of Contents Question 3 Tort Law 3 Negligence 3 The duty of care 5 The default (Breach of duty) 5 Causality (Causation) 6 The distant DAMAGES (Remoteness of damage) 7 Contributory negligence (Contributory negligence) 7 In violation of statute 7 In violation of professional standards 8 Rules of evidence 8 Behaviour of Judges 8 Reference List 11 Tort Law Question The standard of care imposed on the defendant at the breach stage of a Negligence action is determined by reference to the defendant’s act. It is an objective standard. Tort Law Tort is a legal wrong, the majority refers to the adverse consequences caused (such as personal injury or property) of wrongdoing. “Wrongdoing” -There are many examples: a person deliberately induced into another unwanted physical contact (such as spines of others), or that a person interfere with other people’s property (such as, without their consent would use someone else’s car), Or a person could not fulfil reasonable care for others and their property (such as a doctor forgot to come up with bandages after surgery the patient’s body)1. Unlike criminal law, tort law is to make the spirit of compensation for damage and failure. While tort law is not to punish the wrongdoer, it encouraged everyone around them and their property to fulfil reasonable care. At the same time, it is also intimidating effect. There are different branches of tort law, there are examples of negligence (negligence), Occupiers Liability (occupiers’ liability), violations (trespass)2. Negligence Negligence is undoubtedly one of the most important areas of tort law. In accordance with authors, negligence generally has different meanings: First, some legal subjects and deliberately held corresponds a state of mind; the second refers to the behaviour of people would like careless behaviour, negligence can be subdivided into product liability, accident, medical malpractice, mental damage and other types of infringement and so on3. Range from speaking, negligence and other tort species sometimes overlap. Negligence is one of the core content of the British tort law. As an independent tort species, negligence tort Britain often especially because of the special legal relationship between the plaintiff and defendant, so that the defendant bears a duty of care to the plaintiff and the defendant to the plaintiff did not meet the care required by law. The extent of causing the plaintiff suffered damage. Through a series of classic case of the UK judiciary, elements of negligence theory will be summarized as: whether there is between (1) the original defendant, the defendant makes a special relationship bears a duty of care to the plaintiff; (2) If the defendant bears a duty of care to the plaintiff, the defendant is in breach of the duty of care; (3) If the defendant violates the duty of care, whether or not caused damage to the plaintiff; whether a causal between negligence (4) the plaintiff suffered damage and the defendant’s relationship; whether and (5) the plaintiff’s damages are too distant and not get relief law4. In order to prove negligence, we need four elements: duty of care (duty of care), default (breach of duty), remoteness (remoteness of damage) causality (causation) and loss. The duty of care Duty of care refers to the relationship between the “offenders” with the victim between which we have to prove through the “offenders” have a responsibility to fulfil reasonable care to victims, and this responsibility is based on “predictable test” (Reasonable foresee ability test)5. In tort law, the perpetrator without negligence and liability, unless the damage caused by the acts or omissions in violation of the duty of care to deal with the plaintiff assumed. If someone can reasonably foresee their behaviour may cause unreasonable harm to others, then in most cases he may be affected by people respond duty of care. Therefore, the so-called “duty of care” is a legal obligation imposed on the perpetrator. When confronted with a situation, the perpetrator should be in a particular behaviour to whom, otherwise, because of the behaviour of the causes of the relative who suffered some kind of unreasonable risk that shall be liable victim. The default (Breach of duty) Default means that offenders failed to fulfil reasonable care. The definition of “reasonable” is objective, what did the defendant should conform to reasonable person criteria. In determining whether the perpetrator had a duty of care, the perpetrator may cause damage to the relative human behaviour should be foreseeable. As foresee ability standard, based on “reasonable person” standard definition, which uses criteria of objectivity. It is from the perspective of the average person to determine whether the risk can be reasonably foreseen6. According to “The US Second Restatement of tort law.” Article 285 stipulates that a reasonable person’s standard of conduct by at least one of the following four ways to determine: (1) by applying the relevant legal requirements. Hearing the case (i.e. the jury) can be judged according to the rules of a particular defendant’s conduct in a particular case under the facts of a particular case is reasonable; (2) by judicial precedent established reasonable person standard of conduct; ( 3) by the legislature to determine the “reasonable man” through the development of relevant laws and standards of conduct: (4) the standard of care even if a law or regulation does not expressly or impliedly, to establish civil liability, as long as the proper conduct of the law requirements, the court noted that the standard can be determined with reference to the law7. In the first standard-setting case, the jury’s task is to determine whether the defendant as a “reasonable person” the same behaviour. A reasonable person who is a completely hypothetical. A reasonable person is not necessarily dangerous in all aspects of super cautious man, but he is a reasonable and prudent person, nothing more. Of course, the jury in making a reasonable person would be subject to the standards of conduct to guide the judge’s instructions, such as aspects of an emergency situation in which the perpetrator, the perpetrator of physical defects, religion, age, mental defects. The judge will guide the jury to consider these factors8. Causality (Causation) We want to prove that the victim’s injuries as “offenders” caused. In many cases, there are other things that can range from which these things are the real cause of damage. The distant DAMAGES (Remoteness of damage) Remoteness for the kind of injury, the most common physical damage (such as bodily injury, property damage) damage, and pure economic loss (such as reduced income).Focus on the type of injury of distant foreseeable extent of losses, such as burns in the fire is not too “distant” because physical injuries are predictable9. Contributory negligence (Contributory negligence) Even more to prove four elements, “offenders” will be available defences, making it not responsible for the damage. Contributory negligence is one of the most common example, it refers to the victim’s own behaviour has led to the injury. In violation of statute In most courts, if the defendant violates the duty of care required by the statute, the regulations will be considered a violation alone course negligence, violation of traffic rules as cars running red lights is a typical example. If the statute does not specify a duty of care, the court determined that the law can be interpreted to have been implicit in the legislative intent of the duty of care established by the relevant jurisdiction10. At the same time, both a statute does not expressly or impliedly reflect legislative intent deterministic standard of care, the court can still invoke the provisions of the law, to determine whether a reasonable person’s standard of conduct. In violation of professional standards If the perpetrator is a professional with special expertise, such as doctors, accountants, etc., to determine their behaviour standards will relate to “professional negligence standard.”Professional negligence means should be used with caution measures but failed to use a qualified professional staff to be taken. If the perpetrator’s behaviour is not consistent with their respective careers professionals generally have the knowledge, skills, the perpetrator will be identified as negligence. This objective standards of behaviour to some extent, is based on this concept, that is, as the perpetrator professionals should not waste resources that could easily be avoided damage11. Rules of evidence Negligence of proof by direct evidence or circumstantial evidence is complete. The fact that the rules of evidence in the case of the defendant easier access to the facts constituting negligence, and sometimes used the plaintiff’s burden of proof shifted to the defendant, therefore, if not the fault of the defendant, the plaintiff’s injury does not produce, and the defendant for the plaintiff’s injuries status and tools have control over the situation, the judge instructed the jury as long as the plaintiff can no processing negligence, the jury can be presumed the defendant is at fault. Behaviour of Judges In a particular question another environment, the behaviour of the judges evaluate whether it is the standard of human behaviour, the behaviour of people when constituted negligence and the circumstances in which their behaviour is justified. Through one after another case, the English courts gradually formed and developed a set for the negligence of judicial practice. In general, if the defendant’s conduct constitutes negligence, the English courts to consider the following elements: (1) whether the defendant to the plaintiff bears the duty of care (duty of care); (2) If the answer is affirmative, then consider whether the defendant breached its duty of care (breach of duty of care); and (3) whether the defendant’s conduct in breach of its duty of care to the plaintiff caused damage (damage), the damage to the existence of a causal link (causation) and whether the damage between the defendant’s conduct and too distant (remote) and should not provide relief. It must be noted, there is no clear line between these factors mentioned above12. The duty of care and breach and damages split out for an independent investigation, might be artificially (artificial) and is unhelpful (unhelpful). Obligation is a legal relationship between people, one person has been given to the interests of others and responsibility in the event of reasonable care. Obligation is concrete rather than abstract, the judge must determine whether there is a duty of care in a particular case. Duty of care is to judge whether a measure constitutes the primary factor to be considered negligence, unless the plaintiff has confirmed that the defendant bears the duty of care, otherwise the plaintiff to the defendant filed a complaint infringement will fail. Therefore, the attitude of the British court is: if a person people do not bear any duty of care, regardless of their negligence to the whole world how to act is irrelevant. When the plaintiff voluntarily agreed to bear the risk of some harm will be generated when the defendant may own risk plaintiff as a defence. Of course, the plaintiff must prove that the defendant knew the potential danger, and agreed to bear such risks13. Reference List Goldberg, John CP, Anthony James Sebok, and Benjamin Charles Zipursky.Tort Law: Responsibilities and Redress. Aspen Publishers, 2008. Honoré, Antony. “Causation in the Law.” (2010). Kritchevsky, Barbara. “Tort Law Is State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se Litigation.” Am. UL Rev. 60 (2010): 71. Lankford, Jefferson, and Douglas A. Blaze. The Law of Negligence in Arizona. LexisNexis, 2014. Porat, Ariel. “Misalignments in Tort Law.” The Yale Law Journal (2011): 82-141. Schwartz, Victor E., and Evelyn F. Rowe. Comparative negligence. LexisNexis, 2010. Scordato, Marin Roger. “Understanding the Absence of a Duty to Reasonably Rescue in American Tort Law.” Tulane Law Review 82, no. 4 (2008). Shugerman, Jed Handelsman. “Twist of Long Terms: Judicial Elections, Role Fidelity, and American Tort Law, The.” Geo. LJ 98 (2009): 1349. Solomon, Jason M. “Equal Accountability Through Tort Law.” Northwestern University Law Review 103 (2009): 08-010. Zipursky, Benjamin C. “Civil Recourse and the Plurality of Wrongs: Why Torts are Different.” New Zealand Law Review 2014, no. 1 (2014): 145-169. Read More