Negligence Tort Law Essay Sample.
Negligence Tort Law Essay
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Negligence Tort Law
The tort law of negligence allows a plaintiff to sue for the damage, harm or loss the defendant caused through reckless behavior. However, the court identifies negligence liability if the plaintiff can prove that the tortfeasor fell short of the degree of care that amounts to a breach of duty owed, causing damage that falls within the scope of the duty (Steele, 2017, p.116).
The notion of the duty of care was coined from the Donoghue v Stevenson (1932) lawsuit (Steele, 2017). A court finds a duty of care if the plaintiff proves that the harm, loss or damage suffered was foreseeable. Suppose the defendant behaviors do not coincide with actions that a reasonable person would take in a similar circumstance. In that case, it is fair, just, and reasonable to make them liable for their actions (Owen, 2007). Once the court identifies a duty of care, the plaintiff must show that the defendant was at fault and their breach of duty resulted in the harm or loss suffered. In many negligence lawsuits, the court assesses the degree of foreseeability of damage against the cost of avoiding the action that led to the harm and the corresponding benefits foregone in the instance that the action was avoided. The court sets a “but-for” test to examine if the defendant would have suffered the harm. In the case of Barnett v Chelsea and Kensington (1969), the doctor sent a patient home, who later died (Steele, 2017). The doctor passed the “but-for” test by proving that the patient would have died of arsenic poising whether he sent her home or not.
The negligence tort law requires the claimant to prove that the loss suffered is not “too remote” from the defendant’s negligence (Owen, 2007). The plaintiff must prove a chain of causation relating the defendant’s action to the loss suffered. For example, a third party or the plaintiff’s actions might have led to the damage. In such a case, the defendant does not bear negligence liability. Also, the defendants are not liable to damages that they could not have reasonably foreseen. Finally, the defendant must prove that the damage suffered can be recovered. If they fulfil the outlined criteria, the plaintiff is entitled to pecuniary and non-pecuniary losses.
References
Owen, D. (2007). The Five Elements of Negligence. Scholarlycommons.law.hofstra.edu. Retrieved 19 December 2021, from https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2282&context=hlr
Steele, J. (2017). Tort law: Text, cases, and materials.