Tort Law (Term Paper Sample)

Question:
The standard of care imposed on the defendant at the breach stage of a Negligence action is determined by reference to the defendant’s act. It is an objective standard.
Consider the statement above. To what extent is it accurate? Will the court ever impose a subjective standard and, if so, in what circumstances? Use authorities to support your answer.
Negligence
Negligence is the widest ranging of all torts. Negligence is failure to take reasonable care in a situation where a duty to take care is owed to another person which results in harm or loss. Negligence is a type of tort which expands due to some sort of damages & losses take place among parties and these parties have no contract among themselves, consequently there is nothing for one party to take a legal action against other party.[Stephen Osborne, 'THE TORT OF NEGLIGENCE' (accaglobal.com 2014) accessed 02 December 2015]
In the case of JD v East Berkshire Community Health NHS Trust and others [2005] in which social workers and Doctors who had made the statements that parent of children had negligently and wrongly been blaming of mistreatment their children. The children suffered psychiatric injury and the HOL was asked if the suffering of psychiatric injury by the parent was a predictable outcome of making it and such damage has in fact been experienced by the parent. The Court of Appeal upholds the decision and it was held that no duty of care was owed to claimant.[JD v East Berkshire Community Health NHS Trust and others [2005] 2 WLR 993 (HOL)] [e-lawresources, 'E Law Cases' (e-lawresources.co.uk ) accessed 02 December 2015]
Furthermore House of Lord held that to impose a duty would be an extension of situations in which a duty was owed. Social insurance experts and social administration experts don't owe a duty of care to parents in their decision-making concerning matters influencing a youngster. It would be illogical to force a duty in connection to the suspected perpetrator of a crime and the duty would clash with that of the exploited claimant3
The standard of care imposed on the defendant at the breach stage of a Negligence action is determined by reference to the defendant’s act. It is an objective standard
The above mentioned statement is true as once the claimant has established that the defendant owed him a duty of care the next stage in establishing tortuous liability is to establish that this duty was broken. This is the fault element of negligence. It means that the claimant must prove that the defendant failed to exercise reasonable care.
The test for establish whether or not there has been a breach of duty was developed in the case of Blyth v Brimingham Waterworks Company (1856). The judges concluded that failing to exercise reasonable care means that the defendant has not done "what a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or would not do”4[Blyth v Brimingham Waterworks Company [1856] 11 Exch. 781 156 Eng. Rep 1047]
What amounts to reasonable conduct on the part of the defendant depends objectively on the circumstances. The following factors may have an impact upon what is reasonable conduct:
* Whether it is practical to take preventive measures to protect against the risks. As in Latimer V AEC (1953) the factory became slippery when oil mixed with water on the floor. To deal with this the employer ensured that this was brushed up far as possible and put down saw dust. Some patches remained on which the claimant slipped and sustained an injury. The court held that the employer had not breached his duty of care as he had done what could be expected of a reasonable employer to ensure the safety of the employees5[Latimer v A.E.C [1953] AC 643]
* The seriousness of the potential damage to the claimant. If the defended knows that the claimant has an increased risk of serious injury if he should have an accident, extra measures should be taken to fulfill his duty to take care. Keeping into mind the case of Paris V Stepney Borough Council (1951) in which the claimant only has sight in one eye. He worked in a garage. While using a hammer metal entered his good eye and as a result he became totally blind. The claimant was not using protective goggles at the time and none were supplied by his employer as was common practice in this trade. The court held that the defendant should have taken into account the condition of the claimant’s eyes and the gravity of the consequences if anything should happen to his good eye. In not providing goggles the defendant was in a breach of his duty of care.6[Paris V Stepney Borough Council [1951] AC 367 (HOL)]
* The expertise and experience of the defendant. Previous cases have shown that lack of experience or skill is irrelevant to establishing whether there has been a breach of duty. The standard which is expected is the standard expected of a reasonably skilled and competent doctor, driver etc. a previously decided case of Nettleship V Weston (1971) is a good example here in which the claimant who was giving driving lessons to a learner driver was injured in an accident. Despite the fact that a learner driver would not have the driving capabilities of a qualified driver the court held that the defendant had breached hid duty of care to the claimant in failing to reach the standard of driving expected of a reasonable competent driver. Similarly in Wilsher V Essex Area Health Authority (1988) it came to light that the fact that a doctor had limited experience was not taken into account by the court in assessing whether or not the duty of care had been breached, as the patient should expect to be treated by a sustainably experienced and competent doctor.[Nettleship V Weston [1971] 2 QB 691 (ECOA)] [Wilsher V Essex Area Health Authority [1988] AC 1074]
* Professional. The standard of care of a professional man acting in that capacity is that of a competent member of his profession. Therefore the standard of care of a professional such as an accountant is that expected of a reasonably competent qualified accountant. Professionals will be expected to meet the standards required by any professional body such as the law society for solicitors. Professionals may be subject to the code of conduct laid down by professional bodies or also statutory provisions. Reasonably competent professionals would be expected to abide by such code and provisions.
* General knowledge of the risks. This concept could be better understood in the light of a previously decided case of Roe V Minister of Health (1954) in which an anesthetic was contaminated as a result of there being invisible cracks in a glass vial. Two patients were left paralyzed as a result. The court held that the defendant was not liable. The cracks were not foreseeable given the state of knowledge at the time amongst anesthetists. As the cracks were not foreseeable within the profession, a reasonable anesthetist would have taken any precautions to prevent damage and injury arising. Whereas a future case of Haley V London electricity Board (1965) revealed that a blind man tripped over a hammer which was being used to protect pedestrians from a trench on a pavement being excavated by workmen. The man was unable to detect the hammer with his stick and was injured as a result of tripping. The court held that the defendant should have been able to foresee that blind people may use the pavement and the hammer was not adequate protection for the blind. The defendant was liable as less able users of the pavement should have been in the defendant’s contemplation when creating a barrier around the trench to protect pedestrians.[Roe V Minister of Health [1954] 2 ER 131 (EWCOA)] [Haley V London electricity Board [1965] AC 77]
A duty of care described as the relationships and situation that give rise to lawful obligation to take care. Not to do such care can result in the defendant being legally responsible to reimburse compensation to a plaintiff who is suffers loss or injured as a result of infringing the obligation of care. So it is essential for the plaintiff to create that the defendant owed them a duty of care. The existence of a duty of care depends on the type of damage and diverse lawful tests apply to different damages. A duty of care is sometimes imposed by statute, and does not arise from a relationship between the claimant (the person injured) and the defendant. Before 1932 there was no generalized duty of care in negligence.
As in the case of Donoghue v Stevenson [1932] HOL, decided that even if there is no contractual relationship a party should be able to take legal action against who caused them damage or loss. Donoghue with a friend went to cafe shop where her friend brought a ginger beer. Donoghue did not see the contents because Beer was in a solid bottle. After drinking half the beer, she noticed the contents on the bottle that beer contains a decomposing snail and Donoghue suffered personal injury as a result. Donoghue go to court against the manufacturer of the ginger beer.[Donoghue v Stevenson [1932] AC 562]
A manufacturer owes a duty to consumers of his products not to cause them harm. Her claim was successful upheld by Lord Atkin and this case recognized the modern law of negligence and creates the neighbor test. Eventually this case established three lawful principles:
First one is that the negligence is a separate tort. A claimant can take civil action against a defendant, if the defendant’s negligence causes the claimant party harm or loss of property. Beforehand the claimant party needed to exhibit some contractual course of action for negligence to be demonstrated, for exampl...