Tort of Negligence
A tort is civil wrong, which upon prove in a civil court, entitles the plaintiff to a remedy. Negligence is one of the vital civil laws in tort. The tort of negligence has several elements. These are as follows: the defendant should owe a duty of care to the claimant; the duty of care must be breached by the defendant, and most significantly, there must be prove that the failure caused damage, which was reasonably foreseeable to the claimant (Statsky, 2011).
The primal function of negligence as a tort law is to compensate persons, who get injured by negligent actions of others. However, the law does not guarantee compensation for each person injured. To receive a remedy, a person, must prove a duty of care. This was the position taken in the case of Donoghue v Stevenson (1932) (DeMitchell, 2007). The case developed a principle referred to us the neighbor principle. The claimant (Donoghue) sued the manufacturer of a beer (Stephenson). A decomposed snail was in her drink. She fell ill as a result of taking the drink. The court held that each person has a duty of care to his neighbor. A neighbor, in the case, is a person one can foresee may be hurt by his actions or omissions (DeMitchell, 2007).
Further developments on the duty of care got set by a three stage test in the case of Caparo v Dickman (1990). This was in order to contain the doctrine of the duty of care and establish a predictable course. The Caparo case is cardinal in proving the existence of negligence behavior in a modern civil court (Statsky, 2011). The three elements are:
1. It is reasonably foreseeable that a person in the claimant’s place could be hurt by the negligent actions or omissions of the defendant
2. During the commission of the wrongful/negligent act or omission, there existed sufficient proximity between the claimant and the defendant
3. It is not only fair and just, but also reasonable to enforce a liability on the defendant for the negligent acts.
For a claimant to succeed, he or she must not only prove a duty of care, but also breach of that care leading to harm or loss. In order prove a loss, a test, but for, gets applied. The damage must also not be too remote (DeMitchell, 2007). In Barnett v Chelsea, a widow sued a hospital after death of her husband following a visit to the hospital. The court held that the doctor had breached a duty, but the cause of death was, however, not as a consequence of that breach. A person should only be liable of actions which a reasonable person can foresee as the ultimate consequences of a negligent action. In Hughes v Lord Advocate, post office workers left paraffin lamps around a manhole. Two boys subsequently got injured. The defendant was liable as it was reasonably foreseeable (Statsky, 2011).
There are several available remedies in negligence. However, compensation in the form of damages is the predominant remedy. Monetary compensation seeks to follow the restitutio integrum principle (DeMitchell, 2007). The objective is to compensate the victim, as far as money can, to his original status before the tort got committed. There are three fundamental types of damages. These are general, specific and punitive damages. General damages are payable to the claimant in the case where, his loss cannot be quantified in monetary terms. Specific damages get awarded to negligent action that led to losses that can be calculated such as wages. Punitive damages serve more as a punishment to the defendant, rather than compensating the claimant (DeMitchell, 2007).
DeMitchell, T. A. (2007). Negligence: what principals need to know about avoiding liability. New York: Rowman & Littlefield Education.
Statsky, W. P. (2011). Essentials of Torts. New York: Cengage Learning.