Tort of Negligence

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Tortof Negligence

Tortlaw is indicative of an injury or a wrong doing by one person toanother, either willingly or unwillingly (Matter and Stutzer, 2015).In the tort law, the rights and duties are owned by anyone andeveryone at the same time. This means that depending on the points ofargument, any party can sue the other for violation of rights. Evenat the places of work, there are standards related to theoccupational safety of employees and employers as well as visitors.These safety standards ensure that everyone within the businesspremises is safe. An employer is therefore required to perform anassessment to ensure that there are no risks that the people areexposed to. Negligence is made up of the duty of care, whereby thebreach of this care leads to the creation of a causal link betweenthe damaged property and the individuals who are injured (Gold,2016). The elements of duty of care are very important to fill in aclaim under the tort law for the sake of compensation. However, it isimportant to evaluate whether there is a duty of care that existsamong the injured people and the people who supposedly made actionsthat led to the injuries. In situations whereby there is no duty ofcare which has been imposed by the legislative arm of a State, thetest for the foreseeable claimant is normally used (Sebok,2015).In relation to the tort law, the duty of care can be moved from oneparty to the other to avoid the suffering of unreasonable losses.This paper is therefore aims at making an analysis of tort law ofnegligence for a certain incidence.

Anexample of tort of negligence

Atone time, Diana, a single mother went shopping with her daughterFaith in a mall. At the entrance of the mall, Diana met her long-timefriend Caroline and they engaged in a discussion. The discussion tooka lot of time such that Faith began walking along a busy road byherself. Then Caroline noticed that Faith had started to wander allalone and fearing that she might be involved in an accident, sherushed after her. This was at a time that a lorry was passing by at avery high speed but finally Caroline managed to save faith. By badluck, Caroline collided with the lorry and she sustained some minorinjuries. In the process, the lorry driver (Ken) crashed into afootball post in a nearby playground although there were no playersin the playground at that moment. Timothy was driving closely behindKen and on seeing this he pressed hard on the brake pedal and hit atree. Behind the tree was Simon who is moneyed but a piece of glassfrom Ken`s car pierced his functional eye and Simon became completelyblind. Mercy, the grandmother to Caroline who was also from the mallwitnessed all these occurrences and suffered great panic and latershe developed traumatic stress due to this ordeal.

Analysisof the elements of tort of negligence

Thisis an incidence which involves the tort law of negligence on the roadusers. Out of the car accidents that occurred, Caroline sustainedinjuries from a passing lorry. Mercy, the grandmother to Carolinealso developed post-accident trauma and has fears for going into thestreets as a result of what she saw her granddaughter go through(Ferrara etal.,2016). On the other hand, Simon has suffered total blindness when thecar belonging to Ken caused a piece of glass to lodge into his singlefunctional eye. This means that Caroline, Timothy and Ken had actionsthat indicated the potential for negligence. In the case of Caroline,it is expected that those controlling a motor vehicle need to have aduty of care against those who might be harmed on the road. In thiscase Ken owed Caroline, the pedestrian a duty of care. Therefore Kenbreached the duty of care to Caroline in the sense that he isdescribed as having been driving at a high speed near a shoppingmall.

Onthe other hand, Timothy owed a duty of care to Simon by demonstratingthat he was able to drive carefully as a competent driver. However,Timothy was driving at a high speed behind Ken and upon pressingemergency brakes, he crashed and hit a tree where Simon was standing.It would not be advisable for Ken to drive at a high speed behind thelorry. However, we are not told whether Ken was driving at a veryhigh speed above the recommended limit for that scene. However, itcan be viewed that the speed that Ken was driving at was below thethreshold for competent drivers and hence he breached a duty of lawagainst Simon (Velasco,2014). This tort of negligence is indicative that Mercy did not sufferphysical injuries but psychiatric injuries due to the nervous shock.It is up to the tort law courts to determine if Ken was the primaryvictim because his pressing on the brakes hard was due to a feelingthat he would have hit the lorry in front of him, though this isirrelevant.

Inthis tort of negligence occurrence, Mercy can be referred to as asecondary victim because she was a witness to the accidents and not aparticipant. This means that for her to file and succeed in a claimfor the psychiatric disturbance, she needs to show that the injurywas reasonably foreseeable (Conway, 2014). Consequently, Mercy has toprove that there is a tie of affection and love in terms of time andproximity to Caroline in relation to the accident. However, if Mercywas to file the claim by indicating a tie of love and affection, thenshe would not succeed because, at the time of the accident, she issaid to have gone for a short chore at the mall. This means thatthere would have been no proximity for time and space as well. On thebalance, therefore, Ken the lorry driver is not liable to Carolinedespite the fact that he owed her a duty of care. Timothy is directlyliable for the total blindness of Simon although there are issues onwhether the hitting of the tree by Ken`s car was really a foreseeableevent.

Accordingto tort law, although the accident was not intentional, the victims,however, have a right to claim for compensation. Therefore, anindividual can claim for compensation by use of the tort law by useof the doctrine of duty of care (Sebok,2015).In this case, one party becomes liable to the other on the basis ofnegligence. Although some cases can be judged to be originating fromnegligence, it is not the defendants who are always to blame. Somewrongdoings happen out of control and any party can sue the other.

Conclusion

Thetort law therefore indicates a breach of a contract whereby theduties and rights of one individual are violated by another party inone way or the other. Therefore in tort law, it is good that thespecific breach of duty of care is identified as opposed to takingassumptions on a claim that it might go through. In order todetermine the actions of negligence in a case, which involves tortlaw, there are elements which first need to be analyzed. Thereforenearly all the characters in this case breached the duty of care inone way or the other although some of these accidents were not reallyout of negligence but a normal accident which was unavoidable.Compensation should be filed for both the primary as well as thesecondary victims because they sustained physical and psychologicalinjuries respectively.

References

Conway,M., 2014. A New Duty of Care-Tort Liability from Voluntary HumanRights Due Diligence in Global Supply Chains. Queen`sLJ,40,p.741.

Ferrara,S.D., Baccino, E., Boscolo-Berto, R., Comandè, G., Domenici, R.,Hernàndez-Cueto, C., Gulmen, M.K., Mendelson, G., Montisci, M.,Norelli, G.A. and Pinchi, V., 2016. International Guidelines on theMethods of Ascertainment of Personal Injury and Damage UnderCivil-Tort Law. In PersonalInjury and Damage Ascertainment under Civil Law(pp. 583-602). Springer International Publishing.

Gold,M., 2016. And Justice for Ali? An Analysis of a Shipowner`s Duty ofCare in Piracy and Armed Robbery Attacks. Journalof Maritime Law and Commerce,47(4),p.501.

https://www.lawteacher.net/problem-question-examples/tort-law/tort-of-negligence-problem-question-2.php

Matter,U. and Stutzer, A., 2015. The Role of Lawyer-Legislators in Shapingthe Law: Evidence from Voting on Tort Reforms. TheJournal of Law and Economics,58(2),pp.357-384.

Sebok,A. (2015). What Happens if We Call Discrimination a Tort. Jotwell:J. Things We Like,316.

Velasco,J. (2014). A Defense of the Corporate Law Duty of Care.