Law Of Tort 1 � Law Of Negligence

Law Of Tort 1 – Law Of Negligence

Introduction: Law Of Tort 1 – Law Of Negligence

Click here to access top-notch assignment help provided by our native assignment help company.

Tort law is one of the laws that govern and provide remedies regarding civil wrongdoings. The law states the liability of a person for whom an accident has happened whether intentionally or not. The law helps in identifying and making sure that compensation is received for the damages faced by the aggrieved party. In this assessment, Tom’s liability to the aggrieved party Carly and Pablo who have been directly affected, and Eva the paramedic has been assessed. The primary and secondary victims of Tom’s negligence, the cause, and the claimant for the losses have been analyzed under Tort law.

Question 1: The injuries suffered by Carly and the post-traumatic stress and the fear of heights developed in Pablo

Issue

The injuries suffered by Carly and the post-traumatic stress and the fear of heights developed in Pablo because of the c accident are identified to be caused by the negligence of Tom in the work he was responsible for. The most common kind of case that comes in the tort is caused by negligence^[1]. The issue is to identify and assess the extent of liability of the defendant in the context of the harm caused to the victims. The amount of negligence Tom had in taking care of the safety checks performed at the last and before the start of the ride is to be examined in the context of the case. The feasibility of the claims that could be made by the victims is contemplated as well to identify the extent of liability Tom would have to assess the proper compensation based on the case ^[2]. The criteria that are to be fulfilled to fall under the negligent cation under the tort law are to be identified. The determinants of negligence happening by the party responsible are to be found, examined, measured, and proved by the victim party or their representative in the court to legally hold the defendant liable.

Rules

The case where one party has caused harm to other parties due to their being negligent is witnessed in this case. One party has been affected by the adverse effect of the negligence and another party has seen the indirect effect of “the negligent act (1870)”. The defendant has been found responsible for being negligent in his duty and causing an accident in which the victim suffered critical injuries ^[3]. The law that analyses the act of negligence is the Tort Law, the wrongful conduct scrutinized in this law can be both a crime or not a crime, civil tort.

Application

Tom was responsible for performing the safety checks before the start of the ride, due Tom turning up late at work caused the overlook one bolt from being properly tightened and caused the mishap. Carly and Pablo visit the Fantastic World and ride the new ride named “The Beast” followed by the unfortunate event of Carly being injured. Pablo was saved from physical injuries as he could stop falling off his seat on the ride. However, Pablo still suffered from psychological trauma that caused the accident which resulted in Pablo being afraid of heights and having flashbacks of the accident.

The wrongful act that has been identified from Toms's side can be proved to fall under the act of negligence of the tort law if it fulfills the elements of the law that are generally considered in these scenarios.

The essential elements that are to be fulfilled to commit the negligence of tort are 6 elements. The negligence of the liable party can only be categorized if the following conditions are satisfied.

Duty of care

This is essential in asking the person liable for negligence. The pe defendant needs to owe to the other party. In this, Tom owed the rider safety by performing the safety check, and being negligent in the task can be assessed as an immoral, ethical, and unlawful act.

In a similar case of “Stansbele vs Tromanb (1948)”, a decorator was to carry out the work of decorating a house. After the decorator took his leave without informing anyone and locked the doors a thief entered and stole the owner’s property ^[4]. The property owner accused the decorator and claimed the value of the lost goods. The decorator was held liable for negligence as he failed to carry out the “duty of care”.

The duty towards the plaintiff

The defendant should have a duty to the plaintiff party as Tom as an engineer had the duty to monitor the safety of the road which he failed to ensure and the raiders suffered. In the case of “Bourhill v Young (1943)” A fish wife who was getting down from a vehicle and picking up the basket got hit by a motorcyclist ^[5]. The fishwife was the plaintiff the motorcyclist died in the accident and the plaintiff suffered from shock and birthed a stillborn child. The plaintiff sued the deceased motorcyclist representative the cyclist was not held liable and the claims could not be realized.

 Breach of duty

In often the plaintiff cannot prove the duty of care owed by the defendants but in these cases, the plaintiff must prove that the duty of the defendant has been breached. In the case of Carly suffering from physical damage is visible and the breach of Tom's duty has been behind it. “Blyth V Birmingham Waterworks Co, (1856)” is a case where the defendant was responsible for the breach of contract as the standard of care has not been observed ^[6]. Similarly, Tom's responsibility for not ensuring observance of the standard of care could make him guilty as well.

The actual cause

The plaintiff of the case has to prove the volition of duty done by the defendants is the actual cause of the harm caused to the plaintiff ^[7]. Carly and her representatives could collect evidence that the violation of checking duty that Tom was responsible for was what caused the accident.

Proximate Cause

The legal cause which is also named the proximate cause is what is recognized by the law for the injuries. The proximate cause may not be the first or last event of the sequence of events that led to the injury. The cation can have foreseeable consequences of causing the accident with any intervention. The defendant is responsible for negligence where the damages from the actions of the defendant can be foreseen. “Palsgraf vs Long Island Railroad Co (1928)” is a case where a man carrying a package was running after a train. Some railway employees out of confusion attempted to pull the person and employees onto the platform and, on the other hand, tried to push him to help board the train.

 The actions caused the person dropping the package which had fireworks and an explosion occurred and hit the rails. Another passenger named Ms Palsgraf was hit with the scales and filed a suit against the railway company ^[8]. Ms Palsgraf was not entitled to get the claims of the injuries as the cause behind that was not direct. On the other hand, the injuries caused to Carly and the trauma faced by Pablo were directly related and happened due to the ineffective service of Tom the engineer entitled to the safety checks of the new ride. Carly and her representative sues Tom and could prove his negligence action and get their damage claims realized.

Consequential harm

The mere proof of the failure of the defendant to carry out reasonable care is often not enough. The plaintiff needs to prove the failure of reasonable care is what has resulted in the damages suffered by the plaintiff. In this case, is where the defendant owes the plaintiff for neglecting the duty of care ^[9]. The harm can be varied to bodily harm, financial loss, harm to the property, psychological harm and reputation damage as well. The case analyzed in the assessment falls under both bodily harm and mental harm both. Carly has got serious injuries after falling from the seat and Pablo even though did not suffer physical harm has suffered mental harm as he has developed a fear of heights and is having to dread flashbacks of the accident.

Defense for Negligence

Contributory negligence

 The contributory negligence indicates that the c immidiate4 cause of the harm is from the negligence exercised by the plaintiff themselves. The plaintiff can claim compensation against the defendants as the wrongdoings are done on their behalf. In a similar case “Shelton vs L & W Railways (1946)”, and plaintiff croissant the lines of railways was e warned by the railway staff^[10] . The plaintiff being deaf could not comprehend and suffered injuries, the defendant was not held responsible and the case was accounted to contributory negligence. Carly and Pablo are entitled to safety to the drivers of the ride as well as to Tom.

Tom, on the other hand, can put up his defenses stating that the fall Carly was done because of her negligence for which the injuries of Carly are not directly related to Tom and neither the trauma of Pablo. The plaintiff needs to submit solid proof to establish the fault of the defendant and to hold the defendant responsible for the act of negligence. As the accident was caused because of one bolt not being accurately tightened and upon proving the plaintiff will not be held for contributory negligence. Carly can claim compensation agonist for the bodily harm suffered by her.

Act of God

The defendant can further argue that the incident did not happen because of negligence and the amount of care bestowed by humans cannot be assessed. The bolts have been tightened Tom as usual and it was an unforeseen act of nature. “Nichols v. Marsland (1876)” is a case where the defendant constructed and maintained artificial lakes and for the heavy rain, four-country bridges have been swept away. The defendant was not held responsible considering it’s an act of God. On the other hand, the fall of Carly cannot be passed as a natural act of God as it could be assessed and foreseen as the result of having a bolt of the ride loose. The accident can be foreseen and hence the plaintiff can demand compensation d from the defendant parties for their damages.

Inevitable Accident

The inevitable accident is something that cannot be avoided by outside interference, caution, ordinary care and skill. Tom who is the engineer hired to check the safety adjustments of the ride can claim that the ride had some faults that could not be assessed even by himself. like the number of passengers and weight limits or the plaintiffs were not careful enough which caused the accident. The case of “Brown V. Kendal (1850)” was where the dogs of the defendants and plaintiffs were fighting and both of them were in an attempt of separating the dogs.

The defendant held a stick and hit the dogs and accidentally caused injury in the eye of the plaintiff. The court did not hold the defendant responsible for assault as this resulted in an accident that was inevitable. Carly and representatives can argue that their riding “the Beast” irrespective of their weightage or the number of riders or cannot be the cause of the accident as these criteria are to be checked by the company themselves and not the riders.

Conclusion

The thought analysis of the situation has concluded that Carly and Pablo will not be held liable for tort negligence. In the case where Carly and Pablo thought of filing a lawsuit against Tom will make them succeed as Tom is clearly seen as neglecting his duty of care to them. Tom can be held responsible as he has o somehow neglected his work as an engineer performing the final checks of safety for the new ride. The failure to execute the duty of care Tom falls under the negligence part of the tort law and hence has the liability against the charges of Carly and Pablo. 

Question 2: Critical analysis of the rules that are applicable to the secondary victims using case law

Issue

According to the case scenario, the issue of psychiatric damage claims for the secondary victims has been analyzed. These kinds of incidents hold a special category than the usual cases of mishaps. The primary victims who are injured in an accident are mainly due to their own responsibility or as a result of the tort teaser. However, the secondary victim is the person who experiences a nervous shock in an accident without being properly indulged in the physical danger of the accident[11]. Basically, the issue of recovery of the damages of the affected people is not taken into consideration. Furthermore, they are referred to as illogical and ridiculous and are regarded to be one of the most controversial topics in the tort of law. The psychiatric illness is no different from that of the other incidents happening to the person. In addition to that, the damages must not be treated any way differently. In addition to that, most of the problems are categorized as “post-traumatic stress disorder”. 

According to medical research, it has been evidently found that there are basically three kinds of psychiatric illness namely the “primary, secondary, and the special case”. There is a huge possibility of facing severe mental shocks if the accident occurs suddenly and due to the lack of care of the other people. Earlier these issues were not even taken into consideration as it was recognized to be worth less. Moreover, with the development of medical science, these kinds of issues are recognized and have become easier for a doctor to treat people. Apart from that, there are several laws that have to penetrate deeply into the areas of concern for such kinds of problems. This was necessary to allocate some kinds of guidelines in the above scenario as a point of compensation for the eligible persons. Apart from this, following the above information, the claimants who are subject to the psychiatric injury might get a scope of addressing their illness as a part of compensation. 

A psychiatric injury has occurred with Pablo that has a major minor shock in her mind. The accumulation of the entire case clearly shows that this case had a major effect on their mind of Pablo. The claims for the injury have been successfully charged by Pablo on the Tom as it has do not fulfill its duty to check all the safety of the bike[12]. In this regard, proper use of the laws makes an effect on a claim by Pablo for its safety and creates an effect on recovering the medical claims. Their medical value of Pablo can be recovered as Pablo is in shock and not able to do any work.

Moreover, the valuation of the recovery of the medical claim has been properly analyzed as there are 20th-century rules and regulations that can help Pablo to accumulate the entire value. The analysis overvaluation of the serious injury value has an effective reflection on taking the advantages by the tom[13]. Major ways and effective guidelines have been required to inform Pablo to sue the tom under the proper and effective guidance. In that case, proper eligibility for the claim and compensation has been effectively analyzed and creates major implications on the criteria for taking the claim for the medical expenses and also for the ineffectiveness of the entire work. Proper claim for the psychiatric injury and illness that has occurred due to the accident has been affected to the daily income and makes an effect on conducting the work in an appropriate manner. 

Rules 

According to English Law, there is a huge difference in psychiatric harm or the “nervous shock” indicated by the primary and secondary victims of the accident.  According to the case of Carly and Pablo, it was not Carly's mistake due to which she had suffered and become a victim. According to the “Law Commission in 1998 Report on Liability for Psychiatric Illness” [14]. There have been changes in the field of medical negligence and its connection with psychiatric illness.  There have been additional requirements termed the “control mechanism” imposed by the courts on the claims of the victims who have faced psychiatric illness. Furthermore establishing a duty of care for the purpose of not causing any psychiatric damage to the people is comparatively more difficult than physical injury or pain. The courts have introduced several ways of distinguishing for properly evaluating the issue. Primary are the victims who are suspected to be the main injured person. On the other hand, the secondary is indicated to the person who has seen the incident from very close. 

After the implication of the law “Law Commission in 1998 Report on Liability for Psychiatric Illness”, it has clearly analyzed the several factors that create an effect on analyzing the claim value. As per the use of the law commission, it is required to provide the proper valuation of the entire and accurate evidence that can help in proving the effective claim[15]. The law has not been codified effectively and has reflected in taking the proper judicial decision. It has not been liable for having the effective consideration of the psychiatric illness that has created an effect and occurred as a shock.

The evaluation of the overall work has certainly changed and is properly applicable to the laws that created an effect on the “tort of negligence”. Proper analysis of Pablo that has the defendants as Curly and Eva clear evidence for the irresponsibleness of Tom who has not fulfilled their duty at all. The accumulation of this factor can help Pablo to take the medical expense from Tom if it can represent the evidence in the form of the court. The decision of the judge has been clearly based on the effective evidence presented by Pablo against tom [16]. The case against Tom has been won by Pablo if it can effectively represent the clear evidence and have an impact on the overall case of the injury. The valuation of the overall case and its shocked position of Pablo can be recorded and create an impact on the overall case. 

Application

According to the case law of “Taylorson v Shieldness Produce Ltd,” the parents of the injured child failed to receive their part of the compensation as the court declared that the incident was not a factor of a sudden shocking incident that affected the mental state of the claimant rather was followed by a series incident[17]. The child of the secondary victims was crushed by a reversing vehicle and was immediately taken to a hospital after which the ambulance took them to a new hospital. Both of the child's parents were in deep trauma due to the incident. The “Court of Appeal” has clearly refused their claims in the perspective of “tort of negligence”. The period of time extended in their case according to the judgment of the court. Perhaps, they were denied the compensation that was mostly required. 

As per the case law of the Ronayne case, the claimant has fulfilled each of the desired requirements but was deprived of the right to “tort of negligence”[18]. The husband was suffering from trauma after the death of his wife and experienced a very dull experience after seeing the condition of his wife. Perhaps, the claimant was refused to receive his part of the claim from the court of appeal as a consequence of the horrifying incident. 

As per the scenario of Pablo and carry’s case the law of the “eggshell skull” rule is applicable in which Pablo has faced the consequence as the husband failed to follow the duties of care properly. According to the legal requirements, it has been evidently seen that all of the four requirements were duly not met, and as a result if proper justice could not be made [19]. Apart from that, claimants need to be properly able to claim as a rescuer who is actually a secondary victim and has experienced shocks from assisting the primary victim in the respective incident. There are a few claimants who are unable to receive their part of the compensation due to the lack of fulfillment of the basic requirements. 

The case study where the plaintiff won the damages for the claim of £45000 as he served his life as a British Officer. The person has suffered from PTSD as he saw his colleague die in the fire that was due to the negligence of the boss. As per the law, there is no compensation given to a person if they suffer from PTSD while witnessing the death or a major accident of a person. The person lost consciousness as he witnessed the death of a person due to the negligence of a boss. The claim was to help defend the statute as it is restricted and the trial was taken on the basis of the initial status of the limitation that has helped with the trial on the MOD[20]. This case took over several periods of time on the interim payments that were sought for the extensive information for the detection.

The detection is regarded by the “Consultant Psychiatrist and Occupational Therapist” who were able to provide evidence of the PTSD of the British Officer. The treatment that was obtained regarding the treatment of his traumatic symptoms that have led to the injury on his life. The officer has attempted several suicide attempts due to PTSD and the incident of the accident. The fire incident was embedded in the head of the officer had led to him not being able to lead a normal and healthy life. The condition of the plaintiff was highlighted which can help support the purpose of leading him back to a normal life. The settlement was for £45000 and the final amount that was settled for was £20000. This amount was given not as compensation but as a means to help the person return to normal life. 

Conclusion

The psychiatric injury or any kind of illness on a person there will be no compensation given. The secondary victims of any major accident that has been witnessed won’t be able to seek any type of monetary compensation. Carly and Pablo won’t be able to seek any type of compensation for witnessing the incident as it does not fall under any damage foreseeable as they could have seen the loosened bolts and screws of the rides. This could also directly affect the person and can also deem to have ignored the faults in the rides. They can sue Tom on the safety issue of the rise of “The Beast” but not on the premises of PTSD or any kind of mental trauma inflicted on the person.

The flashbacks are regarded as an important illness that helps denotes the psychiatric illness but the establishment of the job profile or any secondary victims are not considered. In this context, this cannot be considered any kind of damage to the person’s body. This also could lead to the reason that will lead to harm conducted on the body or unable to resume normal life. The consideration gap between the accident and the claim is also considered which could lead to the future aspects of the law. This can be stated that the claimants have no right for any compensation.

Conclusion

The entire conclusion that can be drawn on the basis of the case scenario of Carly and Pable states that both of them are not liable to consider as a part of the psychiatric illness. Pable failed to do his part of the duty of care while driving and the incident happened and badly injured his wife. In addition to that, the accident was due to the fault of Tom and the engineer who did not fulfill his duty properly and with the utmost care. Above that, there is a close tie between the claimants as a result of which Pablo is facing such kind of emotions. In addition to that, there is a huge time difference between the events. The psychiatric damage is “sudden assault” rather than the gradual hamper to the mental health state of the patient.

References:

Abraham K, and White G, 'The Inward Turn And The Future Of Tort Theory' (2021) 14 Journal of Tort Law

Chaudhary R, 'Tort: Professional Negligence Of Investigating Authorities With Its Legal Remedies' [2020] SSRN Electronic Journal

Friedell S, 'Jewish Law And The Concept Of Negligence' [2020] SSRN Electronic Journal

Furrow B, 'Reproduction, Arbitrary Statutes, And Tort Law' (2022)

Garcia-Saenz S, Renaux-Petel S, and Ronayne J, 'Primordial Fluctuations And Non-Gaussianities In Sidetracked Inflation' (2018) 2018 Journal of Cosmology and Astroparticle Physics

Johnen J, and Ronayne D, 'The Only Dance In Town: Unique Equilibrium In A Generalized Model Of Price Competition (2021) 69 The Journal of Industrial Economics

Katsivela M, 'The Notion Of Injury In The Tort Of Negligence (Common Law) And The Personal Extra-Contractual Liability (Civil Law) In Canada: A Comparative Study' [2019] SSRN Electronic Journal

Keating G, 'Form And Function In Tort Theory' (2022) 0 Journal of Tort Law

Lahav A, 'Chancy Causation In Tort Law' (2022) 0 Journal of Tort Law

Marcou A, 'Violence, Communication, And Civil Disobedience' (2021) 12 Jurisprudence

Oberdiek J, 'The Wrong In Negligence' (2021) 41 Oxford Journal of Legal Studies

Pillai D, 'Determination Of Damages In Medical Negligence Cases: An Overview' [2020] SSRN Electronic Journal

Prior J, 'The Role Of Local Government In Redressing Neighbourhood Disadvantage: A Case Study From Penrith City Council' [1970] Commonwealth Journal of Local Governance

Rix K, and Cory-Wright C, 'How Shocking: Compensating Secondary Victims For Psychiatric Injury' (2018) 24 BJPsych Advances

Rynkowska D, 'Family Mediation As A Form Of Alternative Dispute Resolution In Poland' (2020) 7 New Trends and Issues Proceedings on Humanities and Social Sciences

Stoyanova V, 'Common Law Tort Of Negligence As A Tool For Deconstructing Positive Obligations Under The European Convention On Human Rights' (2019) 24 The International Journal of Human Rights

Stoyanova V, 'Common Law Tort Of Negligence As A Tool For Deconstructing Positive Obligations Under The European Convention On Human Rights' (2019) 24 The International Journal of Human Rights

Stoyanova V, 'Fault, Knowledge And Risk Within The Framework Of Positive Obligations Under The European Convention On Human Rights' (2020) 33 Leiden Journal of International Law

Tingle J, 'Debating The Best Way To Compensate Patients For Clinical Negligence' (2022) 31 British Journal of Nursing

 

^[1] Barry R. Furrow, 'Reproduction, Arbitrary Statutes, And Tort Law' (2022).

^[2] Vladislava Stoyanova, 'Fault, Knowledge And Risk Within The Framework Of Positive Obligations Under

^[3] The European Convention On Human Rights (2020) 33 Leiden Journal of International Law.

^[4] John Oberdiek, 'The Wrong In Negligence' (2021) 41 Oxford Journal of Legal Studies.

^[5] Gregory C. Keating, 'Form And Function In Tort Theory' (2022) 0 Journal of Tort Law.

^[6] John Tingle, 'Debating The Best Way To Compensate Patients For Clinical Negligence' (2022) 31 British Journal of Nursing.

^[7]Dorota Rynkowska, 'Family Mediation As A Form Of Alternative Dispute Resolution In Poland' (2020) 7 New Trends and Issues Proceedings on Humanities and Social Sciences.

^[8] Steven F. Friedell, 'Jewish Law And The Concept Of Negligence' [2020] SSRN Electronic Journal.

^[9] Kenneth S. Abraham and George E. White, 'The Inward Turn And The Future Of Tort Theory' (2021) 14 Journal of Tort Law.

^[10] Alexandra D. Lahav, 'Chancy Causation In Tort Law' (2022) 0 Journal of Tort Law.

[11] Vladislava Stoyanova, 'Common Law Tort Of Negligence As A Tool For Deconstructing Positive Obligations Under The European Convention On Human Rights' (2019) 24 The International Journal of Human Rights.

 

[12] Ravi Shankar Chaudhary, 'Tort: Professional Negligence Of Investigating Authorities With Its Legal Remedies' [2020] SSRN Electronic Journal.

[13] Dr. Aneesh V. Pillai, 'Determination Of Damages In Medical Negligence Cases: An Overview' [2020] SSRN Electronic Journal.

 

[14] Vladislava Stoyanova, 'Common Law Tort Of Negligence As A Tool For Deconstructing Positive Obligations Under The European Convention On Human Rights' (2019) 24 The International Journal of Human Rights.

 

[15] Marel Katsivela, 'The Notion Of Injury In The Tort Of Negligence (Common Law) And The Personal Extra-Contractual Liability (Civil Law) In Canada: A Comparative Study' [2019] SSRN Electronic Journal

[16] Sebastian Garcia-Saenz, Sébastien Renaux-Petel and John Ronayne, 'Primordial Fluctuations And Non-Gaussianities In Sidetracked Inflation' (2018) 2018 Journal of Cosmology and Astroparticle Physics.

[17] Andreas Marcou, 'Violence, Communication, And Civil Disobedience' (2021) 12 Jurisprudence..

 

[18] Keith Rix and Charlie Cory-Wright, 'How Shocking: Compensating Secondary Victims For Psychiatric Injury' (2018) 24 BJPsych Advances.

 

[19] Jason Prior, 'The Role Of Local Government In Redressing Neighbourhood Disadvantage: A Case Study From Penrith City Council' [1970] Commonwealth Journal of Local Governance.

 

[20] Johannes Johnen and David Ronayne, 'The Only Dance In Town: Unique Equilibrium In A Generalized Model Of Price Competition*' (2021) 69 The Journal of Industrial Economics.