Law of Tort

Description

Glannon (2010) urges that a claim in negligence is a claim in tort, while

tort is a legal wrong and a civil action by one citizen against another and

tried in court. In the law of tort, the person who suffers pecuniary damages

is known as the plaintiff while, on the other hand, the person who is

responsible for the damage is known as tortfeasor or the defendant. In the

law of tort, claimant, or plaintiff, must prove the following things:

(a) tortfeasor or defendant owed a duty of care;

(b) defendant breached the duty of care and

(c) breach cause the claimant reasonably foreseeable damage, one thing

should be noted that the claimant will bear the burden of proof always.

(A) Duty of Care

Street (1983) posits in the view that the defendant owed a duty of care; the first thing which

needs to be proved is the existence of duty of care among defendant and plaintiff and

behavior of the defendant fall in a threshold. Direct Results of the defendant's breach there

is a loss suffered by the plaintiff. While establishing a duty of care, three further factors

must be considered:

Harm was reasonably foreseeable; where the defendant is responsible for his carelessness upon people is likely to be harmed due to that carelessness, because the court will not ask the defendant directly, but will ask to prove that a reasonable person foresees the risk of defendant carelessness causing harm from a person.

Defendant and plaintiff were in relationship of proximity; in a legal point of view, proximity may be established by the relationship between the defendant and the claimant. One more important thing to be noted here that there is as well a situation where the defendant had a degree of control over the situation.

It is fair and logical to impose liability on the defendant; courts may reject the claims when court assessed the situation is unfair and claim of a duty of care is not reasonable. Case also may reject if court assessed that claimant is the author of his own misfortune, and defendant is a public authority and exercising a public function.

(B) Defendant Breach the duty of Care

Dobbs (2000) Describes that proof must be provided in the favor of

breach of duty of care that defendant is liable for negligence.

Negligence is the breach of duty to take care resulting damages. It

may be like failing to exercise reasonable care while fulfilling the duty,

but a jury decided it as a question of fact. While the constituents of

negligence are; The legal duty to exercise on the part of the party to the plaintiff

The breach made by the defendant while performing that duty

Plaintiff suffered damages.

(C) Foreseeable Damage

Koziol, Schulze & Antoniolli (2008) refute that breach because the claimant credibly foreseeable damage, while foreseeable damages are damages that defendant and plaintiff's contract knew or should have been aware at the time of contract. The first example is a test of Lord Atkin in which he told the liability

when the tortfeasor can reasonably foresee that his act would injure his neighbor.

The second example is about both the claimant who must be foreseeable; he must be in a zone of danger that is created due to carelessness of the defendant and in those circumstances, there must be the occurrence of an injury

References:

Dobbs, D. (2000). The law of torts. St. Paul, Minn.: West Group.

Glannon, J. (2010). The law of torts. Austin [Tex.]: Wolters Kluwer Law & Business.

Koziol, H., Schulze, R., & Antoniolli, L. (2008). Tort law of the European Community. Wien: Springer.

Street, H. (1983). The law of torts. London: Butterworths.