Court criteria to determine breach of duty in Tort Law.

Criteria Used by Courts in Determining Breach of Duty of Care under Tort Law

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Standard of Care in Tort Law

Critically Analyse The Criteria Used By The Courts In Determining Whether There Has Been a Breach Of a Duty Of Care Under The Law Of Tort.

The duty of care is considered as legal duty that is imposed on people to follow standard of reasonable care while performing harmful actions. The duty of care is considered as the primary significant element. It should be followed to ignore negligent actions. This is important to know that duty of care can be still found in the circumstances, where plaintiff as well as defendant can be disconnected by the distance of place as well as period. When the duty has been recognised, then it is significant to know whether the respondent has performed in the manner as to have violated the duty of care. This essay assess criterion utilised by court in taking decision about breach of duty of care as per tort law.

The tort of negligence is aimed at providing compensation to the party who is victim of wrong conduct because of omission and careless action. It is argued by Arvid that “the negligence law assigns risk of liabilities in the specific manner by making responsible people for bringing about some harm.” It is evident that there are some relevant needs that are required to be attained before the victims will be succeed in actions for negligence. The deep evaluation of case laws sanctions that courts adopt different methods in developing duty of care in case of violation of duty of care in tort law. The standard of care would be depended on the reasonable foreseeability. The breach of duty is not sufficient for the people to demonstrate that other individual owed them or the duty of care. The injury advocates are also required to establish that the negligent contracting person violated the duty to the other individual. It is evident that the respondent violates this obligation by weakening to perform the reasonable care in performing a duty of care. It can say that the court would not ask the respondent whether he or she predicted some results or not. In this way, it is clear that the matters that include highly improbable results are not expected to be winning. In a famous dispute of Fardon v Harcourt-Rivington, the court held that outcomes were considered as ‘fantastic possibilities’. It can say that they are not predictable. The respondent was only liable for avoiding the ‘rational probability’. To establish the duty of care, it is essentially required to conduct certain tests. Most importantly, the defendant should really owe plaintiff this duty. Consequently, it is required to establish that offender had breached the duty. In last, an applicant has to suffer certain level of damages as the result of this violation.

Breach of Duty of Care

In addition, the breach of the duty of care takes place while someone does not fulfil this duty reasonably in certain aspects. A main point to be considered is that whether the accused is at mistake as per suitable standards under the regulation. It is argued by Gates that it is essential to establish two critical elements to determine breach of duty of care by defendant. Therefore, it is required by the courts to admit that the defendant was not succeeding in achieving the acceptable obligatory standards. By considering the proper statues as well as common law, it can be stated how the respondent should behave to not to cause harms. Subsequently, the event should be evaluated to assess the merit if respondent came under the essential standard of care. Before occurrence of the injuries, this is supposed that certainty’s levels in legislation would permit the persons to plan and direct the conducts with an understanding of hidden liability’s costs related to functions.

In addition, the law develops the balance between rendering compensation wherever the failure has been specifically egregious, and wherever the unpretentious accident has taken place. In Donoghue v Stevenson, the court rules that offender is responsible to the standard of reasonable person. In a case when defendant acts reasonably, then he or she will not violate duty of care. On other hand, an offender will be accountable to breach duty of care in absence of reasonable actions. Even though, it is suggested by Arvid that the defendant should always be evaluated in against of the objective norms. In addition, it is possible to alter test on the basis of features of respondent.

As per general rule, it is required by defendant to make performance of activities with reasonable degree of the skills. In a famous matter of Nettleship v Watson, an offender stated that she must be considered against the low standard of care as the learning driver. Court was not agreed with this point. In addition, it was held by the court that some who undertakes the task should be measured against the standard of reasonably skilled person. In different terms, it can say that the offender may not be depended on the personal lack of skills or understanding as the resistance. A most significant general principle in this relation of violation is that proper standard of care is that of the practically competent individual performing this function. In Hall v Brooklands Auto-Racing Club, a ‘reasonable person’ was like ‘a person in street’ or ‘a person on Clapham Omnibus’. Fundamentally, it can say that the reasonable person should not be regarded as performing perfectly, simply and standardly.

Compensation and Damages

Additionally, there are various exclusions to general rule. According to general rules of defendant having medical condition, it was held by the court that it is essentially required to consider defendant to the standard that regards some medical conditions suffering by defendant. In Mansfield v Weetabix, a standard of care anticipated by the person with unrecognised situation was “gratified to state within the situations was that is to be anticipated of the appropriately capable driver uninformed that he can be passing form a situation that weakens the capability of driving. To implement the purposeful standards in a way that did not consider that conditions would be to enforce the strict liabilities.

According the general rule in sporting events, it is required to avoid the risk in sporting activity by taking full involvement. As stated in popular matter of Woolridge v Sumner, court ruled that there are various inherent risks in the activities related to sporting. These risks can be moving quicker or more brutally in comparison of other standards. The participant should perform in the reasonable way to play the game. In matter of Caldwell v Maguire, the court stated that when standards of behaviour in generous conditions are lesser than the norms of behaviour in routine life, then the competitor are still expected to perform in the reasonable way. These reasonable manners can be in a way of following the sporting rules and in relation to performing with skills as well as aptitude. Subsequently, the norm is instead that of the normal children of age of offender according to Orchard v Lee. In respective matter, a court stated that there is no violation of duty of care. The reason is that the thirteen years old child was not capable to escape the liabilities. In this way, the court stated in a matter of Mullin v Richards that the incident was reasonably conceivable to fifteen year old.

Subsequently, the professionals are assessed in against of the standard of the occupation. This rule is depended on Bolam test. As per this rule, the specialists are anticipated to perform according to the experienced body of specialised opinions. It has included rendering a test to consider non-conventional occupations like auctioneer. The same facts have been mentioned in a matter of Luxmoore-May v Messenger May Baverstock. Additionally, it has covered the test to consider non-conventional experts like window designers. This fact is mentioned in a millstone matter of Adams v Rhymney Valley DC. As per clarifications mentioned in Bolitho v City and Hackney Health Authority, it is found that the course of actions should be able to conduct the practical evaluation before the security provided by Bolam test.

Exclusions to the General Rules

Moreover, a proper standard of care shifts depending on nature of defendant as well as scope of activities being undertaken. When the risks are specifically marked, in that case there would be the anticipation that the rational man would perform to avert the risks from taking place. These facts can be considered as the per Bolton v Stone. These can also be considered in matter of Miller v Jackson. A law would look for imposing the standard of care that balances correspondingly with risks included. In matter of Paris v Stepney Borough Council, it is found that if risk has type of severe harms, then the applicable standard of care can be greater because of risk being predictable. In this way, it can say that the courts would take cost of precaution in consideration while taking into account appropriate standards of care. The lower the cost of a precaution, the more rational this would be supposed for a respondent to have considered this. This rule is discussed in the popular case of Latimer v AEC Ltd. In this way, when dealing with the risks, the investigation is required to be made in relation to the cost of anticipation. Even though, this is required to be considered that this is questionable that the defendant would be capable to utilise the absence of money as the protection. Subsequently, the security is normally the first concern for the businesses as well as entity to deal in place of financial viability.

Additionally, the principal of social value of activity is also very important. The court would implement the less standard of care to social valuable functions as well as vice versa. The principle of social value of activity is well understood by the pertinent topmost case. It can see that in a popular matter of Watt v Hertfordshire County Council, a court rejected claims of the fireman injured in a way of rescue; the emergency nature of condition as well as utility of saving the life outweighed the requirement to have appropriate safety measures. It is required to consider that even while the social value of the activities is really higher, there still exists the requirement to perform with comparative attentiveness. The matter of Ward v London County Council is opposite of Watt v Hertfordshire County Council. In matter of Ward v London County Council, the court stated that the fire engine slowing down at junction will not be significantly influenced tragedy responses related to service. It can be found that the social values of fire services did not validate unnecessarily risks related to users of roads. The social values of the activities are based on a framework of the function. In a matter of Scout Association v Barnes, a court was left to decide whether the probability of damage in the sport played in dark at Scout Association was in a ratio of social value of activities. It was held by the court that while there were additional values in playing sport in a dark, then this turned the normally risky. On the other hand, the socially justified activity cannot be validated by the references to communal values. In this way, the function that usually did not violate standard of care became intolerable at the time of changes made in framework.

Professional Standards of Care

When the proper standard of care has been developed, then it is based on the claimant to make an argument that the respondent breached duty of care. In this way, it would be depended on the equilibrium of probability. In addition, Res Ipsa Loquitor is considered as ‘fact speaks for them’. It refers to the specific circumstances in where a claimant may not directly state that a respondent truthfully performed in the negligent way. However, this is very likely than not that a respondent performed in the negligent way. This situation is mentioned into the issue of Scott v London & St Katherine Docks Co. In this matter, it was stated by court that it was not essential for the claimant to state that the defendant had accurately caused the injuries based on res ipsa loquitor. This stated that the evaluation is essential to be made in three parts for the utilisation of maxim.

Initially, the thing that can be resulted into the damage should be in regulation of the respondent. It can say that it should be in control of the person for whose action the offender is accountable for.) Furthermore, the cause of accidents should be unidentified. Lastly, the injurious occasion should be one that will not usually take place without any carelessness. Therefore, all these three parts of evaluation can be clarified more. The definition of ‘control’ depends on the case itself. In case of Easson v LNER [1944] 2 KB 421, it was mentioned by the court that train entity could not be defined as being in a regulation of entrance that made injury to the applicant. The reason is that there was no such proof that train organisation had unlocked the doors. This can only have the passengers in a train that unlocked it. Furthermore, the need for the unidentified cause is comparatively easy to follow. In a case when the fact of a matter is presented to court, then a applicant can be depended on them to prove the matters in fact, instead of depending on the ‘res ipsa loquitor’. In a matter of Barkway v South Wales Transport, the court ruled that when two individual versions of the event are available to magistrate, then it is not possible to utilise the res ipsa loquitor method. It is required the magistrates should take the decision in relation to the relevant as well as proper set of evidences.

In addition, it is argued by Keren-Paz that the occasion that caused injury of applicant will not have taken place without any type of the negligence. As discussed above, in a matter of Ward v Tesco Stores Ltd, the court ruled that the accident will not have taken place. However, because of the negligence on a part of respondent, the res ipsa loquitor is applied. In this way, the result of res ipsa loquitor is that this encourages the assumption of negligence in against of the respondent. It can evident that the assumption of negligence is rebuttable. While the respondent can render the explanation of how the harms may have taken place deprived of negligence, in that case the utilisation of maxim would fail. It would leave the applicant to state that the version of event of respondent is out of order. In last, this is potential for an applicant to utilise the criminal conviction of respondent as proof that the action of negligence took place.

Shifts in the Proper Standard of Care

As per the above analysis, it can be concluded that the tort of negligence is most logically conceived as the method of corrective fairness. It is found that the negligence involves unreasonable action that violates duty of care that respondent owes to an applicant. The principle is considered as “reasonable man” principle. It is concluded that the typical factors are that respondent owed the duty of care to a sufferer, the defendant violated duty of care, a violation caused the applicant to endure injuries and sufferer had damages as the outcome. The violation of duty of care is established on fact that what a duty of care is. In a case when the defendant is convicted of the crime as well as it includes the negligent actions, in that case a burden of proof would be on the respondent to describe that the action was not as per the negligence. It is mostly applicable in the matters related to the traffic accident. The poor driving is considered as criminal wrongdoing. However, it is also an action to give rise o the matters related to tort. Instead of claimants having to establish negligence on a part of the defendant, they may refer to a statement for which defendant has been found criminally responsible for neglectful actions. Therefore, it can say that the key function of the factor of duty of care in tort law is to explain limitations of the liabilities for damage caused by neglectful behaviours by the references to what are normally addressed "policy’s consideration"'. The main importance of duty of care is that this is useful to describe that the respondent would have to render compensation to the claimant for the harms caused by them because of the negligent conduct. It is highly recommended to consider the notion of duty of care on the serious note.

Adams v Rhymney Valley DC [2000] Lloyd’s Rep PN 777

Barkway v South Wales Transport [1950] AC 185

Bolitho v City and Hackney Health Authority [1998] AC 232,

Bolton v Stone [1951] AC 850

Caldwell v Maguire [2001] EWCA Civ 1054

Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139

Easson v LNER [1944] 2 KB 421

Fardon v Harcourt-Rivington [1932] All ER Rep 81

Hall v Brooklands Auto-Racing Club [1933] 1 KB 205

Latimer v AEC Ltd [1953] AC 643

Luxmoore-May v Messenger May Baverstock [1990] 1 WLR 1009

Mansfield v Weetabix [1998] EWCA Civ 1352