The Law of Tort
A tort is an act, which causes harm to a person, may be intentional or not and it must contrary to the law or to a specific duty or violation of absolute rights it involves the infringement of the civil rights belonging to individuals. It constitutes the following
- a wrong act or omission by the defendant that is the wrong doer.
- There must be legal damage or violation absolute rights such as denying a person from voting.
- The act committed must give rise to a legal remedy in form of an act for damages.
The act or omission may not cause actual damage to the plaintiff. Even though there is no harm caused some may be actionable like trespass on land.
Tort of negligence is defined as “ the breach of a duty caused by the omission to do some act which a reasonable man, guided upon those consideration which ordinary regulate the conduct of human affairs , would do or doing something which a reasonable or prudent man would do” Blyth v Birmingham waterworks co. 1856. There element of negligence and they include
- a prove of duty of care for the action to be successive.
- That there is breach of that legal duty
- there is injury to one party either in person or from a property.
The injury must be because of negligence of duty of care. One will be able to successful prove these that care, breach, injury before successful action is taken.
Standard and Duty of Care
The law is that you must take care that “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to cause injury”. The standard of care by which we measure. The standard of care varies from one person to another. It is assumed that a prudent person who has acquired skills is to act in a manner that is reasonable to any with the same skill. However, in some cases degree of care, skill or diligence, which is, required various with situations. In such situation, a test for standard of care for a reasonable person will be whether “a hypothetical reasonable onlooker would have foreseen the possibility of harm or loss to certain individuals involved in the particular event”
Before damages are awarded it must be proved that there was a foreseeable danger or risk, which both parties were aware, and how a reasonable man would have responded to the foreseeable risk, which the defendant did not do. The there must be a probability of the risk of injury and gravity of the harm. There must also be proving that the burden of eliminating or reducing the risk rested on the part of the defendant.
In a court, ruling differentiation is made on actual damage for the claim to succeed. There should be also connection between the negligent act and the damage caused or suffered. Therefore, reasonable evidence of negligence on part of the defendant must be produced. The defendant should not be held liable for consequences of the damage for instance a driver cannot be held responsible for pregnancy miscarriage of a passerby in case of an accident.
There are many defenses among them
- a person can not complain of damages resulting from a risk he voluntary consented to so long as defense must prove that
- the plaintiff knew of the danger
- appreciated it in all respects
- assumed it voluntarily.
- The person contributed to damages.
This case he will be assumed to part of the causer of the damages. This may include things like not wearing a seatbelt in a car crash.
The main remedy for this is compensation.
References
Gower, L.C.B. and Davies, P.L. (2006) Principles of Modern Company Law Sweet and Maxwell Jordans Cases and materials in Company law, L C Sealy, Butterworths Heinemann.