Tort On Negligence

Tort on Negligence

DEFINITIONS:

TORT:

In common law jurisdictions, tort is a civil wrong although in certain circumstances it is also treated as a criminal case e.g. in cases of assault. It is recognized legally as a basis for an action of a lawsuit. Torts are considered under the law of obligations. Duties imposed under tort law are considered mandatory for all citizens unlike voluntary obligations imposed under contracts. If a person commits a tortuous act, he/ she are legally a Tortfeasor. Tortiuos acts include breach of duties imposed under statutory laws, causing bodily harm to other people, property, or infringing on another’s legal rights [1] .for there to be a case under tort

NEGLIGENCE:

This is a legal concept that is usually used to acquire compensation for injuries suffered or accidents met. It is a civil wrong actionable under tort law. Negligence involves behaving in a manner that lacks the legality of protecting other people against foreseeable risks. Under common law for there to be a case under negligence then the following elements must be satisfied.

Duty of care

Tort on Negligence

Breach of the duty

Experience of harm arising from that breach. Donoghue v. Stevenson [1932] AC 563, 561

Introduction:

A case of tort on negligence is only successful if the following five elements are met. Firstly, a duty of care must be evident. Donoghue v. Stevenson

[1932] AC 563, 561. Given this fact, we also need to know whether the consequences of the defendants act were reasonably foreseen. In case of the family friendly fishing company and Neil, they are legally liable for the immediate harm caused to June and Gina. Kent v Griffiths (2000). In the case of jack versus the Gosford hospital, jack has no legal case against the hospital since the emergency landing that arose was not reasonably foreseen. Topp v London Country Bus Ltd (1993).

In addition to this, Gina and June have a legal case against the family friendly fishing company since there was legal proximity of relationship through the contract of hiring the boat. Home Office v Dorset Yacht Club (1970).

June and Gina have action against Neil and the family friendly fishing. This is because the company and Neil are professionals in this field and yet they breached the duty they are entailed to do. Bolam v Friern Barnet Hospital (1957).

June has no case against Grosford hospital since the process through which she lost her arm is normal since it does happen. In addition, the hospital done the best it could to help her and thus they cannot be accused of negligence.

Tort on Negligence

The Mickey family and the Grosford hospital could all sue the family friendly fishing for damages. However in mitigation the company could claim that there were multiple causes for the injuries suffered, Wilsher v Essex AHA (1988).

On the issue of Gina and June the company could claim that the presence of the rare fish on the new south Wales coast was not a common thing and thus the fish could be a contributory factor for June and Gina’s accident.

On the issue of the Grosford hospital, the family friendly fishing could claim that the helicopter taking an emergency landing could have been a contributory factor to factor to June’s loss of her hand.

Jack may have a legally binding case against the Grosford hospital. Although this is, the case jack would end up losing at the end. This is because firstly there was no relationship of proximity either legal or physical between the incidents that triggered his condition. Caparo v Dickman (1990). In addition, the hospital could claim vicarious liability since at the time of the incident the hospital was on an external mission at the request of the family friendly fishing company.

Although Neil is liable for June and Gina’s initial accidents he is well protected by law. Although June and Gina have a case against Neil, Neil could claim protection under the vicarious liability clause. [2] The vicarious liability refers to the notion that a person can and do become responsible or liable for other people’s liabilities because there exist a legally acceptable relationship. Such relationships might include parent-child relationship, or an employer-employee relationship. In this case, the family friendly fishing could be held liable for Neil’s liabilities since they are the employers.

Tort on Negligence

Between the concerned parties, the most liable party is the family friendly fishing company. This is because all the parties concerned in the melee can all sue the family friendly fishing company. This is because the company’s negligent actions are the reason why each involved party is at a loss. The company should prepare itself for lawsuit and the family friendly fishing company should brace itself, to be legally prepared to pay special damages, general damages as well as punitive damages. On top of this, the company should also be prepared for the courts to issue an injunction against them if it is deemed necessary.

Conclusion:

The five elements of negligence should be recognizable under tort law. However, as professor Robertson of Texas University has noted the five elements needs to be kept separate, this is because in practice there arises lots of conceptual mistakes or confusions. [3]

The use of vicarious liability as a defense against a case of law on tort of negligence has widely been disputed over its rationale. Many scholars have argued that the use of vicarious liability is only intended to find legally a more solvent defendant.

In a legal perspective, the family friendly fishing company is supposed to pay special and general damages to Gina and June. This is because the company has caused the two

Tort on Negligence

irreparable damage because of its own negligent activities.

Damages awarded are usually compensatory but not punitive in nature. For the sake of the family friendly fishing company, the damages it would have to pay would most probably include a punitive element. The punitive element would arise if the employee, Neil would declare that indeed he had asked the company to change the boats gear, although the company declined. This refusal of the company to use standard tools for profiteering reasons would be termed as an act of maliciousness or acting in an callously indifferent way.

References:

Deakin, Simon et. al (2003). Markesinis and Deakin’s Tort Law. Oxford: Oxford University press.

Kötz, H. & Zweigert, P. (1998). 3rd Ed. An Introduction to Comparative Law: Oxford: Clarendon Press.

www.m-w.com/dictionary/vicarious

[1] Kötz, H.& Zweigert, P. (1998). 3rd Ed. An Introduction to Comparative Law: Oxford: Clarendon Press.

[2] www.m-w.com/dictionary/vicarious

[3] Deakin, Simon Et. al (2003). Markesinis and Deakin’s Tort Law. Oxford: Oxford University press.

Tort on Negligence