The Foundations of Law, Tort Law - Assignment Example

Foundations of Law Introduction Generally, laws are crafted as systems of rules enforced through social s with the aim of governing human behavior. The idea of incorporating laws has existed since the start of times and was used as a way of solving disputes among individuals or communities. In ancient times, communities had societal tribunals which would hear cases arising among their members and give direction on the same. Consequently, the 21st century law has come in with more elaborate ways of solving disputes and governing behavior. These include the involvement of various levels of courts, laws and regulations that act as guidance material in solving cases that arise among individuals, entities, companies and communities among others. Distinctively, law of tort is a law that provides remedies to persons harmed by the irrational act of others. In most cases, claims of tort do involve state law and are founded on legal premise that individuals are legally responsible for the consequences of their behavior if it results in injury to others. In its simplest sense, torts are basically civil wrongs. This essay focuses on the foundations of law that can be relevant for the two cases that are presented below. They are majorly based on the law of tort. Tort law presents itself in three different forms namely: intentional torts, negligence torts and strict liability torts. First, intentional tort is an action that is intentionally carried out against another individual with the aspiration of causing harm. For instance actions of fraud, assault, conversion, trespassing, and invasion of privacy fall in this category. Secondly, negligence tort happens when an individual fails to demonstrate the kind of care a prudent individual would take in the same situation and an injury results from the action or inaction. Importantly, while proving a negligence case, five elements have to be taken into perspective. These include: the argument that the defendant owes the plaintiff a duty of reasonable care, the argument that the defendant did not behave in a reasonable manner to show care, plaintiff suffered an injury due to the defendant’s actions or inactions, the argument that the injury itself caused actual damages, and that it is actually the defendant’s actions or inactions which caused the injury. Lastly, strict liability tort refers to the burden of liability on a person without necessarily finding a fault in the proximate cause. Interestingly, the claimant only needs to prove that a tort occurred and was actually caused by the defendant. In fact, the law only imputes strict liability to situations it deems intrinsically dangerous. Furthermore, torts have become more prominent in the world today especially in developed nations who take cognizance of the importance of human rights, safety and protection. Basically, torts are used in cases that involve wrongdoings facilitated by an individual on another party. Due to the acts of wrongdoings that are inflicted by individuals on others, an injured personality may take civil action against the other party. In civil law, torts are actually grounds for lawsuits in an attempt of compensation to a grieving party of any injuries or damages caused. Question 1 Considering the first case involving Conventina Motors, an employer (Steven) is operating in disregard of the company regulations by giving an unauthorized passenger lift home. However, one evening an accident occurs that causes both car crush and an injury to Nigel. In this case, liability exists in tort on the motor company in the sense that it is their car that caused an accident in which Nigel sustained injuries. Action here may be taken from outside the courts through agreement and acceptable concurrence. Nevertheless, evidence has to be evaluated in a court hearing to establish the strength of the case as well as identifying the liable party. Apparently, Nigel is already claiming negligence on the side of Coventina Motors. Therefore, it is clear that liability exists on the side of the company due to the negligence caused by their employer. Specifically, the kind of negligence here is in line with the five elements of negligence explained in paragraph two above. Presently, the legal system in United Kingdom operates in both aspects of common and civil law. Tort law is a form of civil law and manifests itself mostly in form of negligence: an act similar to the one Coventina Motors is being accused of. Since Nigel sustained serious injuries, he is mandated within the laws to sue the company of negligence. In most cases, punishments that emanate from torts are not inclusive of fines or incarceration but restoration is carried out in monetary forms. As much as negligence is a relatively new form of tort, the company needs to be aware that the flexibility it comes with can be a lee way into its consideration by the courts to prove liability. Nevertheless, the claimant (Nigel) must also be able to prove that the company is negligent in consideration with the five elements that determine negligence. Importantly, this concept has been used for a long time especially in actions that are against public bodies. Nonetheless, since the decision by the European Court of Human Rights in 1998, there has been much reluctance by the English courts on the granting of the duty of care. Therefore, in this case of Nigel v Conventina Motors, Nigel would have to show beyond reasonable doubt that the company owes him a duty of care and that it is actually the company that was either directly or indirectly responsible for the injuries he sustained. In this case, Nigel in his suit of the company would have to prove that the company was in breach of their duty of care. The company should not be so infiltrated about the case and should be aware of the process that determines their liability in the case. The determination of the liability of the company would take a two-stage process that involves the below. First, the court is obligated to establish the level of and standard of care that the company owes to the claimant (Nigel). In an ideal situation, the definition of the standard care would be “one that a reasonable person would adopt in a profession, or activity in question.” The company should know that in the determination of this standard, courts have to reach a balance between the degrees of foresee-ability and the costs of avoiding the harm as well as the opportunity cost had the activity causing the harm not been carried out. In light of this fact, it is clear that standard is an objective ideology which depends upon the reasoning and determination by the courts. Factually, the courts have to establish whether the action by Conventina Motors warrants the claim by Nigel and if it meets the standards reached at by the courts. The process of setting the standards for ruling is a question of law and is dependable on facts. Interestingly, the hearing by the courts has to be carried out involving both parties. Therefore, Nigel too has to reveal the basis of his claims that the company breached their duties that resulted in the injuries that he suffered. Furthermore, as much as Nigel would be able to demonstrate the extent of damage done to him by the company or its affiliate, he has to further demonstrate that the injury is not too remote to the company’s negligence. In some cases, courts may determine that the injury was caused by a third party and this can even pose a difficult decisional situation for the courts and parties involved in the case. Perhaps, the other most important part of the determination of negligence, the courts would have to determine whether the injury suffered by Nigel is one that can be ranked and recovered under the law of negligence. For instance, had Nigel not suffered sufficient injury or if the courts deem the injuries not sufficient, he would not be deemed compensatable under the law. On major case that draws attention concerning such an issue is the case of Gregg v Scott. In this case, the claimant and his team were unable to diagnose cancerous effects which eventually caused death. The House of Lords determined that the claimant did not suffer a compensatable injury since it is them who were negligent in the presentation of their case. Even though the company owes liability to Nigel, he must also be able to present his case in a winning way to avoid losing compensation. Significantly, the defendant (Conventina Motors) and the claimant (Nigel) have both to be aware of the facts that surround personal litigation. One fact is that punitive injuries are not captured in the law of negligence. The second is that in trials base on negligence, only a judge and not juries who hears and rules on the cases and awards the compensation. The third is that the losing party usually the one ordered to pay the wining party’s costs. Having known these, Conventina Motors have several defenses that they can rely on. Notably, if both the claimant and the defendant are shown to have participated in the act of negligence then the court apportions the responsibility between the two while adjusting the claimant’s damages. Similarly, Conventina Motors can exclude their liability fully as long as they are able to demonstrate that Nigel consented to a particular case risk leading to injury. Apparently, this is the kind of case that manifests itself her since Nigel accepted a ride in the company’s car just by invitation from Steven. Consequently, the company can still argue that Nigel could have been acting illegally the time since he accepted a lift as an unauthorized passenger. However, this last defense really never works out well as judges consider the harshness subjected to claimants. Notwithstanding, the first two are very crucial defenses that can help Conventina Motors get out of the case free or with limited compensation owed to Nigel. In sum, this section has categorically covered the idea and functionality of tort law in the perspective presented. Additionally, it provides all manner of situations that the company may find itself liable to the claims while giving defense mechanisms through which to evade them. Therefore, the company should find this essay as an important material for advice from which they can draw relief. Nevertheless, the company is individually mandated to grant penalties to individuals who in one way or another did not adhere to the company rules and regulations. Conventina Motors can do this on individual capacity or as an overhaul through company restructuring. Question 2 Considering the second case pitting Elizabeth v Convetina Motors, she is clearly able to bring claims against the company. Specifically, these claims would major around two specific individuals under the umbrella of the company name. First, she can bring a claim against Robert who is trying to take advantage of her situation to inflict sexual harassment on her. Secondly, she can also bring a claim about her boss Tariq for the denial of freedom to take care of her ailing father. Apparently, the two possible claims presented here are a violation of privacy, personal security and the right to free time. It is worth noting the extent to which people value and have interest in their personal security. Privacy and security of individuals is protected in various ways. The scope of personal security interest grows with the advancement in societies. In this century, people are very much informed about their rights and the value of their personal security and privacy. In light of this, Elizabeth should find it viable and within her capacity to make the two claims without fear of contradiction. Importantly, an individual’s interest in their privacy and reputation remain fundamental in all circumstances and this should never be denied. In cases where an individual’s reputation is damaged by actions or untrue speech, they can find it necessary to take action in the tort of defamation. However, in the English law, there is no specific law of tort that can be sued to defend privacy in a court of law. Nevertheless, the country can be credited with important developments that enhance the recognition of human rights and privacy issues. Elizabeth in making claims towards Tariq can argue that she was deterred from attending to her father when she really needed to due to his deteriorating health condition. In this case, she will base her argument on individual deterrence theory. The question here would be as to whether her deterrence could cause much more severe health conditions to her father or if she is left to attend to her father, he would actually recuperate. Despite the fact that Elizabeth has a basis of argument she is also faced with an array of challenges. Significantly, there is a general acceptance that individual deterrence has very little to do with the functionality of tort laws. Even though this perception exists among the larger population, she can go ahead and make her claims against Tariq by claiming that by being deterred from finding time for her father, a negative reputation would follow her as one who left her father in poor medical condition. She can claim that she has the fear of being labeled a less concerned person when it comes to the care for parents. Consequently, it is within her capacity to recognize that her situation especially against Tariq was facilitated as an aggravated damage. In such an instance, she can make use of the tort of misfeasance. Specifically, this type of tort deals with the actions taken in public offices as is evident in the case of Elizabeth v Conventina Motors. The tort is observed in the civil courts in the United Kingdom, Wales and some commonwealth nations. Usually, an action taken in this perspective is based upon the argument that an office holder has misused or abused his powers while on duty. For instance, in the case of Ashby v White of 1703, Chief Justice Sir John Holt made a decision that made a landowner sue a police constable for denying him his right to vote. Usually, in these cases, the defendants are liable for misfeasance if in any case they are owed a duty of care towards the claimant breaches it and the action leads to severe consequences to the claimant. Actually, this tort operates if an official purposely acts in surplus of his powers or with malice towards the claimant. In the case presented here, it is clear that Tariq acted in excess of his powers to deny Elizabeth an opportunity to work flexi-time so that she could find time away from work to attend to her sick father. In the United Kingdom or perhaps other parts of the world as well, employers can be liable to their acts upon employees in two different ways. These are direct liability to the employees and the liability resulting from the acts of his employees on third parties. Common law provides the basis of reference and arguments that are based upon liabilities that occur between employers and employees. In fact, the Employers Liability Act 1969 categorically states that an employer is liable for the default of any individual who participates in company operations. The employer has the capacity to recover indemnity from a party to blame for a defect if any. It is important to note that for Elizabeth to make her claims she must be able to prove the following: that Tariq is actually her boss and a legitimate employee or partner in the firm, that his denial of time to attend to her father is a tortuous liability and that the tort was actually committed during the period that she was undergoing training. Similarly, in the second case, Elizabeth can still sue Robert for being advantageous of her problem and for inflicting acts of sexual harassment on her. Interestingly in this case, she has got a lot to present based on both human rights perspective and on the existent sexual offenses policies. She can argue that Robert despite his position in the firm does not have the permission to inflict sexual harassment on her. Considering the fact that he is asking Elizabeth to come to her office the following day in a short see-through skirt, she is mandated by law to question Robert’s intentions and ill motives. Conventional wisdom dictates that if one is requesting for such kind suggestive dressing in his office to his subject, he is obviously up to no good. Therefore, this action by Robert presents a strong foundation for argument in a court of law. With a view of these two separate individual cases and considering the fact that these are partners in Conventina Motors, Elizabeth can either decide to sue them under the company umbrella or singly. Significantly, the jurisdiction that exists in the United Kingdom describes two forms of litigations that may be applicable. These are: group litigation orders and representation orders in which more than one individual has a similar interest in the claim presented. Either of these can be adopted by a claimant as long as she deems it significant to the success of her case against the defendant. Considering the milestones that have been made by the United Kingdom law it is imperative that individuals take cognizance of the same to ensure that they don’t suffer tortuous effects of other people. Nonetheless, there still will continue to be conflicts between rights-based human rights and the wrongs-based English laws of tort. Evidently, they will continue to exist for a long time as long as there is still little recognition given to certain forms of tort laws in the country. In sum, this essay has captured the principles and elements of tort law and explained various interests and protections covered within torts. In the first case pitting Nigel v Conventina, the company is surely liable for the accident that Nigel incurred as it was caused by their employee. In the second case as well the company is indirectly liable for the actions of Robert and Tariq who inflicted sexual harassment and denial of flexi-time respectively. Therefore, the two claimants Nigel and Elizabeth are obligated within the law to make their claims in line with the provisions of the law of tort. The essay has established that the continuous conflict between English common law and the rights-based Strasbourg law is still likely to cause tensions and confusions for many years. Specifically, this will affect the way in which the law of tort is facilitated in the United Kingdom. Therefore, the English tort law has faced a lot of challenges especially in the interpretations of strict cases. For instance, courts have strived to weigh various cases in fair and just manner especially those involving children and public authorities. Tort law is thus very important in achieving justice for individuals who are victims or any kinds of tortuous activities. References Fleming, J. G. 2005, An Introduction to the Law of Torts (2nd edn), Clarendon. Read More