Elements of the Tort of Negligence
Negligence is doing something recklessly of which a reasonable or sensible man would not do. Negligence tort is an unintentional tort because the person involved fails to exercise care and hence carelessness causes damages. It is the most vital tort because it deals with a wide range of cases based on general applications. Negligence was once a distinct tort in the nineteenth century and its fundamental nature was that a person should be liable for any harm, he causes to another through carelessness (BPP, 2010). However, from that time, the negligence tort has been explored and is now divided into five elements: duty to protect, breach of responsibility, cause in fact, legal cause and harm. This paper focuses on the five elements of the tort of negligence and the practical applications applicable in each element.
Duty to Protect
The element of duty to protect implies that everyone must care for all. This indicates that a person should not do anything irresponsibly which may cause damage or hurt to another. For example, a doctor must give a patient the right treatment by giving proper and safe medication. A duty is like a yarn that binds people to one another in society. It guides proper behaviours and gives a basis for judging unacceptable behaviour thereafter. Curries and Cameron (2000) argues that the choices of behaviours are deemed unacceptable if they violate an existing obligation to avoid inflicting damage to others. Any negligence claim must go through the duty doorway that is connected to the tort of recovery from damage. In identifying the extent to which a person is liable for misdeeds in varied contexts, duty balances both the interests of the victims who suffer from harm and the actors who seek freedom from their deeds.
Breach of Responsibilities
The breach of responsibility happens when a person fails to act reasonably and cause damage either intentionally or unintentionally to another. The person fails to observe a standard of behaviour to avoid unknown risks and thereby causes damage to a person or property. The negligence law stipulated this standard to define proper behaviour among people, for example, in a crowded area where people are in motion and cannot avoid collisions. Acting inaccurately breaks the duty of care. To determine the amount of care sensible in a particular situation, the law of negligence revolves around the standard of a sensible person and can set up a standard to assess a defendant’s behaviour. While most individuals’ behaviour is assessed according to the reasonable person standard, those of children or disabled persons are measured according to the reasonable behaviour for persons with the same characteristics.
Cause in Fact
Before the negligence law gives responsibility to a person for causing harm to another, it requires that the plaintiff ascertain a cause and give an outcome of the relationship between the negligence and the damage. Many people are injured every day due to car accidents or slide and fall accidents. While these accidents are assumed the negligence of a person, many are just bad lucks or caused by the reckless behaviours of the victims. The law of negligence permits a casualty to recover damages only if the defendant was part of the blame for the origin of the accident. This element of cause is thus portrayed as the actual link involving a defendant’s carelessness and the plaintiff’s damage.
Nevertheless, to prove the cause of the harm, the claimant must be able to connect his damage to the defendant’s carelessness, the trait of the conduct that violated a duty to the claimant (Goldman & Sigismond, 2010). For example, if a person is hit by a carelessly driven vehicle in a road path, the claimant in a negligence suit must not only say that the car which was driven by a reckless driver hit him but should also state that the vehicle was driven in a high speed, which due to negligence, caused the accident.
The legal cause states that there must be a link between the violation of duty and the damage caused or realistic or lawful causation. Otherwise, the claimant receives no payment: the defendant might have lawful or unlawful accountability. Likewise, the proximate cause might be termed as a logical close link amid the defendants wrong and the claimant’s damage.
This is also a negligence claim, which means the damage a claimant bears due to the defendant’s violation of duty. The law of negligence protects a person from possible physical injury, possessions damage, and even death. However, it does not protect the claimant from financial loss, such as loss of profits, contracts or earnings. Similarly, negligence law does not cover secondary losses; these losses include emotional suffering, pain and loss of happiness.
Practical Applications of the Elements of the Tort of Negligence
Duty and Cause in Fact Elements
Gerven et al. (2001) affirm that the duty of care element has two purposes: one is to provide a general outline for the many situations in which accountability may arise and the second is a limitation, which entails laying the boundaries in which a person may be responsible for causing damage to another. There are many situations where the law of negligence implements the duty of care.
For example, there was a case involving a defendant who was loading bags of maize on a lorry. In the process of loading, he stuck a child with one of the bags that contained maize. The question which was to be resolved is whether the loader was obligated to a duty towards the child or not. In this case, the lawyer had to know the relationship between the claimant and the defender because owing to the relationship, the person who caused the damage was required to act in a certain way towards the child. The lawyer further tries to establish whether the defendant was obligated for a duty to care for the child. The relation of the defender and claimant was also required to determine if it was appropriate for the defendant to protect the child from harm. If the lorry was near a walkway and the child was walking by, the court is apt to rule that the defender is accountable. However, if the child were walking in a private area, the court would probably find it difficult to charge the defendant. A cause in fact element can also be decided for the above case of the child and the loader. In this case, the child injured by the loader is supposed to prove that indeed the loaders negligence caused the injury.
Proximate cause also applies in the previous example. Lunney and Oliphant (2003) affirm that in this element a defendant is only responsible for the damages that he could have foreseen before the accident occurs. However, the damages should fall inside the scope of foreseeable risks, but is outside the scope, the claimant is not able to give enough prove.
In the case above, the child who suffered damages would establish the proximate clause proving that the loader could have seen the dangers of the bags hitting the child. Suppose that the child’s bicycle is also damaged in the process and the father and the boy, one day later, decide to drive it to a bicycle repair. On their way, they are involved in another accident where a car hits them. Although the resulting damages may revolve around the harm inflicted before, it would be difficult for the defendant to predict that injuries will arise in the next few days. In this case, the father and son are not able to show or prove a proximate source.
Breach of Contract
Goldman and Sigismond (2010) outline that in the breach of contract, a person who knowingly renders another into a substantial risk of loss breaches the duty. However, the legal case established in 1951 states that the defendant does not care less if he did not foresee the risks that could lead to damages. For example, there is a case where a cricket ball thrown by cricket players in a nearby field struck a woman on the head. The ball hit her while she was standing at the door of her house. During that time, it was believed that the cricket ball could not be hit to a far distance to cause any harm to persons within the safe distance. Despite the claimant being injured on the head, the court ruled out that she did not have a legal claim because the players did not foresee the danger.
Damage or Harm Element
The claimants are entitled to compensation when the cause of harm is established. The damages are paid to the claimants according to the nature of harm such as physical or mental injuries. For example, in a case where a man was injured on the head while at work and resulted in brain damage. The court was in his favour because he got those injuries while working as an employee. The court held the employer liable as the defendant for the cause of the accident.
In this light, we find that all the five elements of tort pool together a group of related issues for investigation and ruling. Each element has its own unique but related content. The usual number of elements is four, but in this case, the five-component approach allows further division of the causation element. In this case, the causation element contains the proximate causation and the cause in fact. There are several distinct issues held by each element. All five elements have been applicable in different cases, but the most applied is the duty element which deals with the obligation of one person to another. The way the negligence tort is devised is important for its cluster of elements since it defines the boundaries for each case. In general, negligence law reviews the reason for people’s choices to engage in reckless behaviours because the law considers choices as improper if they violate an obligation. A negligence case is successful only if these five basics of tort are met. However, for these cases to be successful, all the parties involved should deal with each element separately because as we have seen in the practical examples, many intangible mistakes are likely to occur. The courts should also try to resolve the resolve disputes that occur with the use of vicarious liability as a protection against a rule on the tort of negligence.
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Currie, S. and Cameron, D. (2000) Your Law. Melbourne: Nelson Thomson Learning,
Gerven, W. et al. (eds.) (2001) Cases, Materials and Text on National, Supranational and International Tort Law. Oxford: Hart Publishing.
Goldman, J.A. and Sigismond, D.W. (2010) Business Law: Principles and Practices. Mason, OH: Cengage Learning.
Lunney, M. and Oliphant, K. (2003) Tort Law: Texts and Materials. 2nd ed. Oxford: Oxford University Press.