TORT LAW

To what extent does the law of torts protect the interests of those owed a Duty of Care?

Introduction

The development and existence of the law of torts can be traced back to many years and is at times regarded as the area of ordinary law as it remains after all the other causes of legal action have been taken such as after contract law or breach has been taken away. With time, this area of law has developed to be one that is generally adaptable across all aspects of society law and therefore it remains to be a crucial area of law as it is adaptable in many other areas. [1] In the law of torts, a victim of any form of injury is allowed to make their problem someone else’s problem. This is very different from a criminal case in which the state is fully in control of its initiation, management as well as the happenings of any proceedings. However, in a tort of law, prosecutions are made by the victim or the victim’s survivors and therefore this creates a distinct difference between the two types of law.

At the same time, the successful proceedings in any tort of law case does not lead in to a sentence of punishment like is the case in any other form of law but to a judgment of liability. In this regard, such a judgment of liability requires that the defendant should as a way of paying any damages caused to effectively compensate the plaintiff financially. [2]Generally, in the event that an individual or a contact causes another individual damages, the remedy for such a breach in tort are usually a claim that is pressed to substantiate the breach as caused by the occurrence.

             

However, there exist equitable remedies in some cases that ensure that the individual incurring the damages is effectively compensated though this takes place in appropriate cases only. In this regard, the main aim of tort is to create a mechanism for the compensation of an individual who suffers damages as a result of the breach of duty as fixed by the law.   As a result therefore, the law of tort places a greater emphasis on the wrongs of commission that an individual commits as opposed to the wrongs of omission. As such, the main aims for the administration of a tort is to discourage individuals from engaging in a particular form of behaviour which is likely to stop them causing harm to others in the future as a result of engaging in the behaviour.

 

On the other hand, [3] tort law includes some aspects of a duty of care which in tort law refers to legal responsibility requiring that individuals should conform to certain set standards of care when engaging in any acts knowingly or unknowingly that could potentially harm others. It therefore recommends that individuals should exercise care when engaging in any acts or making any omissions in undertaking dealings to prevent the occurrence of any unforeseen damages or claims by an individual. When engaging in acts negligently, the law of torts therefore requires that one carefully considers the impact of the actions on the welfare of other people after which the outcome dictates if one should proceed with the action or not. [4]Any action that would potentially harm others is discouraged and should lead to withdrawal. In this case, an individual is discouraged from hiding any other information that if gotten earlier would have led to a change of mind or action plan.

The individual is therefore said to have deliberately led an individual in to the eminent trouble by not advising them correctly. In this regard, any omission as foreseen to potentially injure or endanger another person yet an individual does not take measures to advice or seek the other persons knowledge of the challenge in waiting and does not inform them is liable to protection and knowledge submission. During the proceedings and subsequent issuance of a sentence, a plaintiff should be able to effectively link the defendant with a duty of care as obligatory in the law of torts that he has breached to warrant a successful determination of the case. In this case therefore the law of torts goes a long way in protecting individuals from careless actions by others. In tort law, a duty of care can be imposed by a law that is in operation between individuals who do not relate directly at a given time but eventually end up being a relationship of any manner. This means that even at the initial stages of engagement, individuals cannot expose third parties to potential damages by not revealing all information to them and therefore such an act is prohibited by the clauses of tort law. [5] It therefore formalizes the relationship that could be in existence between individuals and is considered as an aspect that leads to the formalization of such a contract. This also includes the implicit responsibilities held by individuals asserting that all individuals have a duty over others to protect them at all times. This is the frame work on which the tort law works towards the promotion of existence of peaceful coexistence in the society by protecting individuals in various capacities. In this regard, tort law does not necessarily have to be based on law or legally defined, but it always fits in the jurisprudence of common law and the common societal legal structure.

As a result, [6] the law of torts protects the interests of those owed a Duty of Care to a large extend by ensuring that individuals do not do things that could potentially harm others in future knowingly or unknowingly among many other ways. These ways include the various objectives that a law of tort seeks to achieve which are closely intertwined with that of a duty of care. To start with, the law of torts has compensation as one of its major objectives and therefore ensures that any individual who suffers damages resulting from the lack of another individual to carry out a prior examination of a certain cause of action to ascertain its potential impact on the other party. The tort law therefore provides a channel through which an individual who has suffered losses and (or) damages are compensated by those who owe them a duty of care. This provides a legal frame work on which individuals can sue others for compensation after the occurrence of a loss that results from an existing foreseeable danger but were not informed of them hence protected. [7] In such circumstances, tort would refer to the means through which such liability issues emanating from related cases are decided upon, assessment of the compensation that is due done and subsequently awarded to the victims of such circumstances. This links to the basic aspects of duty of care as it requires that any damages caused to an individual by another as a result of potential danger and is not brought to the knowledge of the plaintiff, then such damages should be born by the defendant which is a principle upheld by the tort law.

At the same time, [8] the law of tort has sufficient mechanisms to protect the interests of both parties who enter in to any contract or agreement of any sort and therefore all parties should be rightfully and always protected.  Just like in the duty of care, the tort law protects an individual’s reputation, interests in any property such as land as well as their bodily integrity. Generally, this leads to the promotion of peaceful co-existence in the society as every individual’s rights are respected and promoted in the society. The interests of such individuals are always taken care of in a tort law otherwise such would be in contravention of the outstanding welfare as included in tort law. Consequently, under the tort law, various laws have been developed to effectively cover each of these purposes. In such cases, [9] in the event that an individual’s interests are not protected by preventing them from any looming potential harm by another individual who is or was in a position to protect them, such is considered as violation of the rules as stated in a tort law and such an individual is liable for prosecution. A good example is the tort of nuisance that protects an individual’s enjoyment of their legally acquired and owned property such as a house or land. In this regard, the law tort is very clear that; a person should not inconvenience another in any way and therefore protect their peaceful enjoyment of their property. If such happens and potentially posses related damages to the other person, this is an offence that is liable to prosecution under the law of tort as well as the duty of care. [10]At the same time, the tort of defamation is meant to protect an individual’s reputation from any form of degradation whether verbal or otherwise, this should be upheld at all times and so if one does anything that could potentially affect the individuals reputation, he is liable to be prosecuted under the provisions of the tort law and as enshrined in the duty of care. On the other hand, the tort of negligence is meant to protect the violations of more general duties that are owed to an individual at any given period of time and therefore if such happens, one would be liable to prosecution under the tort law as well as the duty of care legislation.

 

In addition, the rules under the law of tort have a restrictive effect on individuals and as such encourage people to undertake much less risks in undertaking their activities considering the effect that this may have on the other individuals and on their rights. In this case therefore, individuals are expected to mind their action s as this affects the welfare of the other individuals either directly or indirectly. [11]As such they are expected to engage in activities cautiously minding the welfare of the effects that these activities may have on the welfare of other individuals in the society as swell as their property. The carrying out of any activity by an individual may at times adversely affect the welfare of other individuals for example, when building a factory on a piece of land, one is expected to consider the effects that such an undertaking would have on the people who live around in terms of pollution effect, noise among others and therefore such an activity if not done procedurally would be considered unlawful under the auspices of tort law and duty of care.  The effect of such activities are reflected better in the wider awareness requirement for the carrying out of risk appraisals and the management of such risks by all individuals who could be looking forward to investing such as entrepreneurs, manufacturers, health providers among others.

 

[12]The carrying out of an initial survey and assessment of the risks that would be posed by the commencement of a project are therefore crucial as would be required by the tort law as well as the duty of care. This protects individuals and third parties from being exposed to risks that could be prevented by other individuals creating an environment of peaceful coexistence among individuals. To prevent such, the tort law proposes effective mechanisms that ensure that all individuals in the society are prevented from the actions of others that could potentially harm them. In this regard, the tort law through the use of deterrent effect to protect individuals is heavily related to motoring among other activities and careers with the issuance and availability of incentives to encourage individuals to be more careful with what they do hence protect the others. [13]The lack of putting in place prevention mechanisms to protect third parties and other individuals during the commencement and continuation of a project is as such considered an unlawful act and therefore any undertaking should have its effects on other people and all related activities assessed pre-hand and considered before to avoid harming other people.

 

Moreover, [14] the law of tort just is required in a duty of care is frequently recognized as a way through which losses suffered can be distributed as a result of carrying out of wrongful activities by an individual. This encompasses the re-distribution of the cost of the activities being undertaken or the goods in question from the claimant who has been injured to the defendant, or in most cases the defendant’s insurance company which therefore pays the claimant the costs withstanding thereof. This means that the costs of the whole of this process are enshrined in the tort system as there exists unseen administration costs that must be met and therefore it’s the system that meets such. This is the reason as to why it is referred to as a loss distribution mechanism or vehicle. The system therefore meets all the costs that exist regarding the whole process making sure that each of the parties involved is satisfactorily settled through the administration of the tort law as well as that of the duty of care.

 

In conclusion, the law of torts protects the interests of those owed a Duty of Care to a large extend by ensuring that individuals are protected from damages that could result from the failure by others to provide information to them hence avoid potential harm to them. Generally, the law of torts has provided clear mechanisms to guide the settlement of some of the most common cases that take between individuals towards the creation of a suitable means to solve them. This works hand in hand with the duty of care that ensures that individuals don’t suffer malicious damages as caused by others who might fail to provide them of all the relevant information pertaining a certain undertaking and therefore lead to future harm. As a result, this creates a favorable environment for all members in the society and therefore peaceful coexistence.

 

 

 

 

 

 

 

 

 

 

References

Texts

 

  1. Cane, M. (1999), The Anatomy of Tort Law, Oxford: Hart Publishing.

 

  1. Coleman, J. and Mendlow, G. (2010), “Theories of Tort Law”, The Stanford Encyclopedia of Philosophy (Fall 2010 Edition).

 

  1. Cohen, P. & Roth, P.C., (2011) PR Newswire: Mass Tort Litigation in New Jersey, New York: McGraw publishers.

 

4.      Coleman, J. and Mendlow, G. (2010), Theories of Tort Law, The Stanford Encyclopedia of Philosophy. 

 

  1. Elliott, C. and Quinn, F. (2005), Tort law, Harlow: Pearson Longman.

 

  1. Ibbetson, K. (1999) Historical Introduction to the Law of Obligations, Oxford University Press.

 

  1. Madden, M. S. (2005), Exploring tort law, London: Cambridge University Press.

 

  1. McBride, N. J. and Bagshaw, R. (2008), Tort law, Longman Law Series, London: Pearson Education Limited.

 

  1. Palmiter, A. R. (2006) Corporations: Examples and Explanations, 5th ed., New York: Aspen Publishers.

 

  1. Wright, H. (2001), Tort Law and Human Rights, Oxford: Hart Publishing.

 

  1. Zalta, E. N. (2003), “Theories of Tort Law” (ed.), Oxford: Oxford University Press.

 

12.  Zalta, N. E. (2007) The Legal Duty of Care in Tort Law, Foreseeability of Injury, Tort law, 6th ed. London: Pearson Longman.

 

Journal Articles

  1. Nolan, M. (2007) ‘New Forms of Damage in Negligence’ MLR 59

 

  1. Cane O. (2006) (ed), Atiyah’s Accidents, Compensation and the Law, 7th edn, Cambridge University Press.

 

 

 

 

 

 


[1]Ibbetson, K. (1999) Historical Introduction to the Law of Obligations, Oxford University Press, (56)

                    [2] Coleman, J. and Mendlow, G. (2010), Theories of Tort Law, The Stanford Encyclopedia of Philosophy,(123). 

 

[3] Nolan, M. (2007) ‘New Forms of Damage in Negligence’ MLR 59, (45)

 

[4] Zalta, E. N. (2003), “Theories of Tort Law” (ed.), Oxford: Oxford University Press, 73.

 

[5] Cane O. (2006) (ed), Atiyah’s Accidents, Compensation and the Law, 7th ed., Cambridge University Press (25).

 

[6] Zalta, N. E. (2007) The Legal Duty of Care in Tort Law, Foreseeability of Injury, Tort law, 6th

 

ed. London: Pearson Longman (48).

 

[7] Wright, H. (2001), Tort Law and Human Rights, Oxford: Hart Publishing (72).

 

[8] Coleman, J. and Mendlow, G. (2010), Theories of Tort Law, The Stanford Encyclopedia of Philosophy, (153).

 

[9] McBride, N. J. and Bagshaw, R. (2008), Tort law, Longman Law Series, London: Pearson Education Limited (32)

 

[10] Coleman, J. and Mendlow, G. (2010), Theories of Tort Law, The Stanford Encyclopedia of Philosophy,(153).

 

[11] Cohen, P. & Roth, P.C., (2011) PR Newswire: Mass Tort Litigation in New Jersey, New York: McGraw publishers, 37.

 

[12] Cane O. (2006) (ed.), Atiyah’s Accidents, Compensation and the Law, 7th ed., Cambridge University Press (34).

 

[13]Elliott, C. and Quinn, F. (2005), Tort law, Harlow: Pearson Longman (54).

 

[14] Madden, M. S. (2005), Exploring tort law, London: Cambridge University Press (61).

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