Discussion of Negligence
Discussion of Negligence
According to Turner (2013), a tort refers to a civil wrong committed by one person against another person. The law of tort attempts to adjust for harms done to individuals by awarding the successful plaintiff who demonstrates that the defendant was the cause of their loss, damage or injury. A tort can be classified into intentional torts, strict liability torts or negligence torts. Intentional torts arise from intentional acts while unintentional torts arise out of a defendant’s recklessness or carelessness. A strict liability tort is type of tort in which no proof of fault on the part of a defendant is required. Thus, lack of intention or knowledge thereof is irrelevant so long as the act or omission is present. Tortious liability may be classified in terms of injury to the person and property. Injury to the person attracting tortious liability may include such acts as wrongful death, defamation, malicious prosecution, false imprisonment, assault or battery and mental or psychiatric distress. Injury to property may include fraudulent misrepresentation, unfair competition, product disparagement, nuisance and trespass.
Also relevant to the discussion of torts is the issue of defenses which are the legal excuses that the law permits a defendant at fault to plead in a bid to lessen or distinguish liability. Examples of such excuses include voluntary assumption of risk (volenti non fit injuria), consent, necessity, contributory negligence and self-defense (Steele, 2014). Further, whenever a court of law proves that the plaintiff has suffered loss or harm due to the defendant’s act or omission or wrong against them, it can order the defendant to pay compensation in form of damages to the plaintiff. The amount varies with the extent of damage caused and the role of each party in contributing to the damage.
This is the most common form or type of tort. Negligence according to the decision in Donoghue v Stevenson (1932) refers to an act or omission falling below the standards of care expected of a reasonable person in the defendant that causes loss, damage or injury to a third party. In other words, it is doing what a reasonable person in the defendant’s circumstance would not do or failing to do what a reasonable man in his place would do. For instance, failing to fence off a swimming pool in the backyard where children are frequent is negligent since any reasonable person would foresee that they would drown in the pool.
However, liability for the tort of negligence requires the establishment of four main essential elements (Owen, 2007). First, in order to succeed in a claim of negligence, the plaintiff must prove that the defendant owed them a duty of care, the defendant breached that duty of care, the breach consequently caused damage to the plaintiff or their property and that the damage or loss was foreseeable, not too far-fetched or root a consequence of the defendant’s act or omission. According to Barnett v Chelsea & Kensington Hospital [1969], causation must also be proved.
References
Owen, D. G. (2007, Summer). The five elements of negligence. Hofstra Law Review, 35(4), 1671-1686.
Steele, J. (2014). Tort law: Text, cases, and materials. Oxford : Oxford University Press.
Turner, C. (2014). Unlocking torts. London & New York: Routledge.
